Tama Potaka changed his tune. Photo / Mark Mitchell
Māori Development Minister Tama Potaka said he was not aware the Government’s Resource Management Act replacement legislation would not include a Treaty principles clause, saying the first he had heard of it was on Tuesday morning when he was questioned by media.
“The first I’ve heard of it is right now. I haven’t seen any formal document,” he said this morning.
On Tuesday afternoon, Potaka had changed his tune, claiming not to understand the questions he had been asked.
Asked to detail what had been confusing, Potaka said, “I’m not getting into semantics”.
Minister for RMA Reform Chris Bishop told media on Monday Cabinet had ruled out incorporating a Treaty principles clause in the two bills the Government will introduce to replace the Resource Management Act (RMA).
He detailed his reasoning for this on Tuesday, saying the new bills, which have not been drafted yet, will be clearer on Treaty matters than the RMA is currently, describing the existing regime as “open ended” and “amorphous”, leading to legal risk and uncertainty for Māori and non-Māori alike.
The Government’s own Expert Advisory Group on RMA reform (EAG) actually recommended the current Treaty principles clause from the existing RMA be carried over to the new legislation.
The RMA’s Treaty principles clause, section 8, requires “persons exercising powers and functions under the RMA to take into account the principles of the Treaty of Waitangi”.
The EAG also recommended including additional clauses that would make the old Treaty principles clause operate more effectively and give “increased certainty about how the [Treaty clause] should be applied”.
These could include: seeking to involve Māori as early as possible in resource management decision-making; providing opportunities for Māori to engage in relevant planning issues within their area of interest; protecting ancestral relationships Māori have with natural resources in their rohe (region); or ensuring decision-makers have appropriate knowledge, skills and experience of Māori issues, or access to it.
A minority report by one of the members of the group, Paul Melville, who works for Federated Farmers and who formerly worked for National’s research unit, proposed a “descriptive Treaty of Waitangi clause outlining how existing Treaty settlements are to be provided for”.
The report said decisions made by councils regarding the Treaty should be made by councils alone, rather than jointly. Those decisions would be constrained by a descriptive Treaty clause included in the primary legislation.
Bishop said he did not know why Potaka was unaware of the removed Treaty principles clause.
“I don’t know what’s in Tama’s head, but Cabinet has made a decision to not have a generic Treaty clause in the RMA.”
Asked if Potaka had been consulted on the bills, Bishop said “he’s a member of Cabinet”.
Bishop said the RMA replacement bills would have Treaty provisions that honoured existing Treaty settlements, but it was unclear the extent to which the new laws would handle Treaty issues that fell outside of what had already been agreed in historical settlements between the Crown and Māori.
“I want to be really clear, there will not be a clause that says the act must ‘give effect to’ or ‘take account of’ the principles of the Treaty of Waitangi. That is a different issue to having a recognition in the Act that Treaty settlements and Māori rights and interests are important. The bills will have those sorts of clauses in them. The devil is in the detail in this stuff,”
“That is a different issue from the legitimate expectations of Māori that their role in the resource management system is recognised and protected. The devil is in the detail here. We are interested as a Government in descriptive clauses that make it clear for everyone including iwi, Māori, and hapū, what their role is in the system, what their legitimate expectations are, what their role in the system is.
“The problem with generic Treaty clauses is they are open-ended and amorphous and they create uncertainty and legal risk for everybody, so getting the descriptive clause right is really important.”
Bishop said the Government departed from the recommendations of the EAG because “we have a different view as a Government”.
“We have a coalition agreement between National and NZ First to review those clauses, to make them more descriptive,” he said.
NZ First Minister Shane Jones has history with the original RMA and its Treaty principles clause.
As a young lawyer working for the public service, he helped advise the then Environment Minister Geoffrey Palmer on the original RMA.
Fast-forward 30 years and Jones said he supported changes to the way resource management incorporated the Treaty, pointing to the example of the fast-track regime, which required “all persons exercising functions to act in a manner that is consistent with existing Treaty of Waitangi settlements and other arrangements”.
“I think the way in which Treaty principles have evolved, they’ve become more generic and more unspecific, and we’ve surrendered too much power to these grandees on these unelected bodies,” Jones said.
Labour’s environment spokeswoman Rachel Brooking was disappointed with the change. Labour’s RMA replacement bills had strengthened the Treaty clause to “give effect” to the principles of the Treaty of Waitangi, rather than just “take account” of them, which is the way the clause is worded in the RMA.
Brooking said it was “curious” Potaka did not seem to be aware of what was in the Cabinet paper.
The Government published the EAG’s blueprint for the new RMA on Monday. It agreed to most of the group’s recommendations. An independent economic analysis, conducted by Castalia, reckoned that if the EAG’s recommendations were implemented, the benefits would be worth $14.8 billion in present value terms – this figure is comprised of $11.3b in compliance cost reductions and $3.5b in reduced administrative costs.
The consultancy warned the estimates were very uncertain.
Brooking offered cautious support for some of the proposed changes, noting they were similar to what Labour had legislated in its two RMA replacement laws, which were later repealed by the coalition.
“There are lots of changes that are very similar to what we were doing with the Spatial Planning Act and the Natural and Built Environments Act: having a lot more consistency, having one plan per region, getting rid of non-compliant activities, which are quite confusing, using more permitted activities,” she said.
Brooking wanted to wait and see the final legislation before giving a view on what she thought of shifting from a regime that managed “effects” of land use, as is the case under the RMA, to managing “externalities”, which is the case under the proposals.
On Tuesday, Bishop wrote to Labour and the Greens, seeking their support for the regime, and inviting them to discuss possible compromises to secure that support.
“As a first step to seeing if we can work together, I have offered to provide them with a substantive briefing from officials at the Ministry for the Environment as well as Janette Campbell, the chairwoman of the Expert Advisory Group. This will be an opportunity to discuss the report together and answer any questions.
“Following this, there will be an opportunity for discussion between parties on potential areas of mutual agreement.
“Where we see that compromise could be possible without undermining the intent of our reforms, the Government will work collaboratively with the Opposition to see whether a mutually agreeable position can be reached,” Bishop said.
Thomas Coughlan is Deputy Political Editor and covers politics from Parliament. He has worked for the Herald since 2021 and has worked in the press gallery since 2018.
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