Enabling decision-makers to ‘give effect’ to Te Tiriti
By Reto Blattner-de Vries
The first exposure draft of the Natural and Built Environments Bill (NBEB) is one of three new pieces of legislation set to replace the Resource Management Act (RMA).
The RMA has been subject to valid criticisms for its weak provisions surrounding te ao Māori and Te Tiriti o Waitangi. In the Minister’s press release, David Parker acknowledged that “the stronger recognition of Te Tiriti o Waitangi and Te Ao Māori are important considerations within the proposed Act.” However, if Councillors and decision makers lack the education to sufficiently “give effect” to Te Tiriti, it seems unlikely the Bill will achieve its purpose in this pursuit.
Shortcomings of the Resource Management Act (RMA)
One of the primary issues identified within the RMA is the lack of recognition and provision for te ao Māori within the purpose and principles of the resource management system.
Litigation under the RMA has demonstrated that a lack of understanding of te ao Māori leads to incorrect decisions by councils despite the existence of legislative provisions that attempt to implement Te Tiriti and te ao Māori within the RMA. Historically, this has included correcting decisions where councils have summarily dismissed tangata whenua concerns where a proposed activity would adversely affect the relationship of Māori with their ancestral lands, water sites, waahi tapu and other taonga (Kawhia v Otorohanga District Council).
Incorrect decisions by councils due to lack of understanding of te ao Māori is part of the trend of RMA cases concerning Māori and water, which very rarely result in clear wins for Māori (Ruru 2018).
The NBEB
The Bill seeks to improve recognition of te ao Māori and Te Tiriti o Waitangi by:
1. Introducing ‘Te Oranga o te Taiao’ within the purpose of the Bill which incorporates-
a. the health of the natural environment;
b. the intrinsic relationship between iwi and hapū and te taiao; and
c. the interconnectedness of all parts of the natural environment; and
d. the essential relationship between the health of the natural environment and its capacity to sustain all life
2. Requiring decision-makers to ‘give effect to’ the principles of Te Tiriti, replacing the current RMA requirement to ‘take into account’ those principles.
These proposals significantly strengthen te ao Māori and Te Tiriti o Waitangi at a legislative level due to the proximity of ‘Te Oranga o te Taiao’ to the purpose of the Bill, and the strengthening of the wording in ‘giving effect’ to Te Tiriti o Waitangi.
However, without an effective mechanism that transfers knowledge of tikanga and te ao Māori from the legislative level to a grassroots level, we risk continuing to produce legally incorrect decisions such as that in kawhia as well as decisions which continue to negatively affect Māori.
Importantly, this is so regardless of a change in legislative wording because elected decision-makers at the council level cannot appropriately ‘give effect’ to the principles of Te Tiriti nor can they uphold ‘Te Oranga o te Taiao’ if they do not have the requisite knowledge required to engage in those decisions in the first instance.
The need for wider education on te ao Māori and tikanga
At present, there does not exist a single coordinating regime which educates all elected decision-makers at a council level on tikanga and te ao Māori upon election. While there exists a Making Good Decisions programme which helps councillors, community board members, and independent commissioners make better decisions, its Foundation Course is conducted over just two days, with only 1 of its 10 modules containing any explicit reference to Māori.
It is entirely discretionary as to whether a council decides to implement such an educational requirement. For example, the Bay of Plenty Regional Council has developed a guide for its staff to educate themselves on Māori engagement, including tikanga and kawa. However, the document requires the staff themselves to engage with it and to seek help from the Māori policy team when further questions are required. Therefore, the information contained sits very much within the frame of discretion. In other cases, whether an education requirement is discretionary remains unclear due to ambiguous wording, which in one instance states that ‘elected representatives and staff will have an opportunity to gain an appreciation of Māori culture and tikanga’.
Existing regimes
Creating an educational mechanism for decision-makers at the council level would follow in the footsteps of a programme already established and implemented by the Institute of Judicial Studies (IJS). The IJS is the professional development arm of the New Zealand judiciary and provides education programmes and resources which foster an awareness of developments in the law. The IJS includes a tikanga course and notes that ‘judges must have an understanding of formal Māori protocols, whether to use this knowledge in the courtroom or outside it. Judges also need a basic awareness of tikanga as law, both procedural and substantive, and where contained in statutory directives and as part of the wider New Zealand common law’.
Continuing this trend is the unanimous approval by the New Zealand Council of Legal Education (NZCLE) to include concepts of te ao Māori and tikanga within all core law degree courses. Speaking about the move toward a bicultural legal education, Professor Khylee Quince stated that ‘Moving to a bicultural legal education is about catchup. It’s also about being a good treaty partner…tikanga is becoming increasingly important at all levels in the courts, yet judges and lawyers don’t necessarily understand it as they don’t have the tools from their own legal education’
In ELI’s view, it does not make sense to restrict these developments that have occurred within the judicial and educational sectors. Elected decision-makers at a grassroots level make incredibly important decisions concerning te taiao, many of which are rendered incorrect due to a lack of understanding of te ao Māori and tikanga. This lack of understanding can only be replicated by exposure to tikanga and te ao Māori. Without this, existing systemic issues will continue regardless of a change of high level legislative wording.
Recommendations for change
If we want this Bill to result in positive outcomes for Māori, we must recognise the crucial role that elected decision-makers play in managing the natural environment. In order to substantially improve recognition of te ao Māori and Te Tiriti o Waitangi, there must be a requirement that elected decision-makers at the council level be required to attend mandatory education which incorporates both an introduction to tikanga, and te ao Māori. We must also remember the high demand that tangata whenua already experience in working with councils and central government, meaning that more widespread education is needed to fairly balance this labour.
Such a requirement is not unrealistic, and can be achieved by building upon what already exists within the Making Good Decisions Programme, (but extending the course to give elected decision-makers sufficient time to substantively engage with te ao Māori and tikanga Māori) as well as within the IJS.
Education and understanding is important to forming meaningful relationships. Providing decision-makers with an education will help us move toward an approach in resource management which sees decision-makers becoming more honourable Tiriti partners.
References
Jacinta Ruru, “The failing modern jurisprudence of the Treaty of Waitangi” in Mark Hickford and Carwyn Jones (ed) Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi (Taylor and Francis Group, 2018) 127 at 135.
Kawhia Harbour Protection Society Inc v Otorohanga District Council (2007) 13 ELRNZ
