Iwi Consultation under Regulations
Māori environmental guardianship - kaitiakitanga
The environment is interrelated and essential to Māori culture, economy, identity, and well-being. Māori often speak of their role as kaitiaki (guardian), for the sky, sea, and land - the process and practices of protecting and looking after the environment are referred to as kaitiakitanga.
The Conservation Act 1987 and the Resource Management Act 1991 (RMA) provide for recognition of the Treaty of Waitangi and kaitiakitanga. Section 7 of the RMA requires all individuals involved with managing the use, development, and protection of natural and physical resources to have “particular regard” to kaitiakitanga.
RMA provisions encourage Māori participation in the management of natural and physical resources and requires the consideration of Māori values, culture and tradition in resource management decision making. Relevant provisions include:
Section 6 (Matters of national importance): In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing resources, shall recognise and provide for the following matters of national importance … (e) the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga (f) and (g).
Section 7 (Other matters): In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to (a) kaitiakitanga.
Section 8 (Treaty of Waitangi): In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of te Tiriti o Waitangi (Treaty of Waitangi).
Any application for Resource Consent considered to be of National Importance will be overseen by the EPA.
The purpose of this Act is to establish an Environmental Protection Authority and to provide for its functions and operation.
Particular provisions relating to Māori include:
Section 4: In order to recognise and respect the Crown’s responsibility to take appropriate account of the Treaty of Waitangi (a) section 18 establishes the Māori Advisory Committee to advise the EPA on policy, process, and decisions of the EPA under the environmental Act; and (b) the EPA and any person acting on behalf of the EPA must comply with the requirements of an environmental Act in relation to the Treaty, when exercising powers or functions under that Act.
Section 19 (1): The function of the Māori Advisory Committee is to provide advice and assistance to the EPA on matters relating to policy, process, and decisions of the EPA under an environmental Act or this Act. (2): The advice and assistance must be given from the Māori perspective and come within the terms of reference of the committee as set by the EPA.
Under Section 33C; Iwi engagement reports
Every holder of a Tier 1 permit must provide to the Minister an annual report of the holder’s engagement with iwi or hapū whose rohe includes some or all of the permit area or who otherwise may be directly affected by the permit.
Mineral permits application consultation
Crown have an obligation under the Crown Minerals Act to consult iwi and hapū on proposed permit application areas falling within their rohe.
Relevant iwi and hapū are notified of:
- the area being considered in the permit application
- the types of activities that may take place should a permit application be granted,
- the proposed minerals
Iwi and hapū are given 20 working days (extendable to 40, if requested) to comment on any aspect of the proposal. They can request areas not be included in the application, or for certain activities to be subject to additional requirements that recognise cultural characteristics of the area.
NZP&M provides a report to the Minister on the response received from consultation.
The Minister must take into account iwi and hapū requests to exclude areas or require additional requirements for activities before making a final decision on the areas to be included in the application.
CASS’ duties to customary marine title (CMT) and protected customary rights (PCR) applicant groups
When CASS applies for resource consent in the common marine and coastal area we will need to notify and seek the views of any group that has applied for recognition of customary marine title in the area. Here is a list of current applications (https://www.justice.govt.nz/maori-land-treaty/marine-and-coastal-area/applications) on the Justice website.
CASS’ duties to customary marine title groups
In applying for resource consent in an area where customary marine title has been recognised, CASS may need the written permission of the customary marine title group. There are exceptions to this requirement in sections 64(2)(a)–(h) of the Act (Accommodated activities). No customary marine title determinations have been made under the Act so far.
CASS’ duties to protected customary rights groups
In applying for resource consent in an area where a group exercises protected customary rights, the consent will not be granted if the activity will have more than minor adverse effects on the rights unless you have the permission of the protected customary rights group. There are exceptions to this requirement in section 55(3)(d) of the Act (Effect of protected customary rights on resource consent applications) within the meaning of section 65(1)(b)(i) of the Act.
No protected customary rights determinations have been made under the Act so far.
Applications for CMT or PCR may be made through the Crown direct, when the application will be registered on the justice.govt.nz website or alternatively by application to the High Court. A Public Notice is then required and this will generally be given in the NZ Herald newspaper or on the applicants website.
CASS monitors relevant sites to assist with discovery and will engage all applicants in proximity to it’s exploration area (tenements).
CASS engages with Iwi through Kaitiaki Advisory limited
Brendon Green, founder and director of Kaitiaki Advisory Limited (KAL) consults to CASS on all matters Iwi. KAL specialises in working with Maori and commercial entities in regard to natural resource development and brings experience from developments of national significance.
Over 2016-17 KAL has held numerous hui with representatives of CASS and through the korero and exchange of whakaaro (“ideas”) CASS has developed an understanding of key areas for Maori:
- Maori seeking to lead their own destiny
- Maori acting as custodians of resources in their rohe that takes into account
- the long term sustainable development of resources; and
- their responsibility to make decisions that affect future generations
- Manaakitanga & kotahitanga. The spirit of hospitality and unity in working with parties.
CASS has adopted these principles and through KAL has held hui with tangata whenua to open up discussions towards developing relationships and ultimately to gain support for the Waihi and Taranaki seabed mining permits.
Engagement with Tangata Whenua
Over 2017 the goal is to develop relationships with tangata whenua who have mana moana – mana whenua over the seabed of the permits and hold wananga to enable Maori to gain an understanding of the developments in their rohe and furthermore for the CASS developments to incorporate their concerns and aspirations.
One key concept has been defined in line with the Kaitiaki (guardianship) role of Iwi in relation to their Rohe, specific to the areas of the exploration interests of CASS.
CASS is an exploration company, on course to complete staged evaluations to achieve a project ready for mine build in 2020 and onwards. The stages to be completed are;
- JORC definition resources
- Environmental surveys
- Development of environmental management policies
- Resource consent
- Extraction license
- Project finance and mine build
- Commissioning and production with strict environmental controls in place
In the course of this development, CASS will not embark on environmental surveys until a JORC resource is defined. From Hui and general discussions, Iwi will not engage until environmental protection policies are established to ensure both company and Kaitiaki responsibilities are complied with.
With this in mind any proposals for Iwi cooperation should begin whilst a JORC resource is established and be cemented as a strategic alliance before environmental policy development and surveys are underway. This would ensure Iwi input to all environmental decision making pathways and allow for correct cooperative policy development.
It is believed that this approach to mining will provide a win-win for key stakeholders in the developments.
Prior to any sampling, any relevant Iwi applying for or granted Customary Marine Title or Protected Customary Rights under the Marine and Coastal Area Act, located in proximity to the permit areas (tenements) will be contacted and information provided outlining;
- the proposed locations for drilling and bulk samples; and
- the timing of exploration activities; and
- outlining the appropriate management measures that will be implemented to avoid or mitigate the actual or potential effects of the exploration activities; and
requesting information regarding areas of special significance or wahi tapu that should be avoided.