Judge lauds Resource Management Act as ideal

By MATHEW DEARNALEY

The Resource Management Act is a vehicle for honouring indigenous rights according to international ideals, says the Principal Environment Court Judge.

In a paper he will present to the International Bar Association's annual conference in Auckland, Judge Gordon Whiting describes the legislation as providing a unique formula of sustainable resource management giving statutory protection to Maori.

"The provisions for Maori interests are forward-thinking and reflect international ideals on indigenous rights," he says.

"There are some who say the provisions go too far, there are some who say they do not go far enough - such are the tensions of ... trying to get things right in a democratic society."

He points to the legislation as a feature of "a more enlightened age" than that of early European colonisation, in which forests were cut down with religious zeal and Maori cultural values accorded even less regard than the environment.

But Judge Whiting says that although the legislation requires documents such as regional and district plans to show sensitivity to Maori issues, few spell out how this should be achieved.

"This is usually left for episodic decisions on a case-by-case basis," he says. "The danger is that the ideal can be lost sight of."

His paper calls for the ideal to be actively protected, and says balancing this against other relevant factors such as the "national interest" is an important challenge.

At the conference today Judge Whiting will use the Environment Court's recent time limit on the diversion of Whanganui River headwaters for electricity as an example.

He notes that to Maori groups, severing the headwaters of their rivers is a sacrilege.

And he will explain that Maori have always believed the spiritual realm interacts with the physical, seeing natural resources as part of themselves. "To desecrate or pollute a natural resource is to desecrate or pollute Maori through their ancestors."

But he says the court had to balance this against the national interest of power development in allowing Genesis Power to keep taking the required water, but for only 10 of the 35 years sought.

This will allow the parties to focus on finding appropriate longer-term solutions, to be determined "in an appropriate Maori way".

Judge Whiting will advocate a greater use of iwi management plans to bridge the gap between Maori and European worlds.

He says iwi plans can be considered part of New Zealand's fulfilment of international obligations.

Although iwi plans do not give Maori the right to exclusive control over how resources will be managed, Judge Whiting says they may be a step towards meeting the technical efficiency requirement for accepting a transfer of local council functions over particular resources.

He notes a provision in the Resource Management Act allowing councils to transfer any of their functions under the legislation to other public bodies, including iwi authorities, although he acknowledges this has yet to occur.