Rights in the reformed resource management system

This page explains how the resource management rights under te Takutai Moana Act 2011 will be upheld in the resource management reforms.

The RMA reform

Currently, some of the rights under te Takutai Moana Act 2011 connect to the Resource Management Act 1991 (RMA). These connected rights enable rights holders to have a say over what happens in their customary marine area, ensure customary activities can be carried out and have influence over plans prepared by councils which shape what people can do in the coastal marine area.  These are described here.

The Ministry for the Environment is leading work to repeal and replace the RMA with a new system. Two new Bills – the Natural and Built Environments Bill (NBA)(external link) and the Spatial Planning Bill (SPA)(external link) – were introduced into Parliament on 15 November 2022.  

The government has committed to ensuring that these Bills uphold the rights of takutai moana groups. Te Takutai Moana Act 2011, where most of the rights are described, will need to be amended to reflect this.

The amendments aim to ensure that the rights are still of the same effect and strength in the new resource management system. As part of the process for developing these amendments, Te Arawhiti and the Ministry for the Environment worked together with a group of external experts who provided advice on the transition of rights between the two systems.

This group was called Te Rōpū Tai Timu Tai Pari (Te Rōpū). Te Rōpū were selected because of their collective expertise in takutai moana and resource management legislation as well as representing takutai moana applicant groups in discussions with the Crown, Court, and the Tribunal. Te Rōpū members were Tom Bennion, Andrew Irwin, Matanuku Mahuika, Sarah Shaw and Annette Sykes.

Te Rōpū provided Te Arawhiti with a report of their feedback on the resource management reform. This report can be found here. [PDF, 310 KB] The report from Te Rōpū details the challenges the group faced, background to the legislation and recommendations from Te Rōpū for upholding takutai moana rights.

A Te Arawhiti summary of the new resource management system is described here.

Participate in the select committee

You can participate in the select committee process for the new resource management Bills to have your say on the reforms, including how takutai moana rights are upheld. The select committee process will begin after the Bills have their first reading.

To have you say on the new Bills you can make a submission to the select committee. Information on what a submission is and how you can make a submission can be found on Parliament’s website here.(external link)

Submission on the new resource management Bills will be heard by the Environment Select Committee. Find out how the select committee process works here.(external link)  

 

If you have applied for customary marine title

Most takutai moana groups currently have applications for customary marine title (CMT), which haven’t been decided yet. We call these groups applicant groups.

People who want to apply for a resource consent in the same area as a CMT application area must seek the applicant group’s views on the activity before going to the council for a resource consent.

This will remain the same in the new system. To promote best practice and ensure the council can check that the person seeking the resource consent has contacted the right applicant groups, there will be two changes:

  • the person seeking the resource consent will need to tell the council that they have sought the views of applicant groups, and also pass on any views they have heard to the council; and
  • if they haven’t done this, the council will return their resource consent application back to them and let them know the application is incomplete.

The views of applicant groups can then be considered by the council but won’t be the final word on what happens to the consent. The council will still decide whether or not to approve the consent.

Customary marine title groups

Some takutai moana groups have had customary marine title recognised, we refer to them as CMT groups. CMT groups have more legal rights over their CMT area. How these legal rights will be upheld in the new resource management system is set out below.

The right to say yes or no to some resource consents

CMT groups can say yes or no to some resource consents in their CMT area. This is called an RMA permission right (permission right). Activities that require resource consents are set out in plans. In the new system these will be called natural and built environments plans (NBA plans).

At the moment, for resource consents that a CMT group can say yes or no to, a person who wants a resource consent must go to the CMT group and ask their permission for the activity. The resource consent applicant could wait until they have completed every other step in the council consenting process before they do this, meaning the CMT group only finds about the application right at the end of the process.

To promote best practice, and ensure that the CMT group knows about resource consent applications earlier in the process, there will be two changes made:

  • the council will be required to forward a copy of any relevant resource consent applications to the CMT group when the council receives the application. This is to ensure CMT groups are informed about the resource consent early in the process and can begin thinking about whether to give permission.
  • when a resource consent applicant formally seeks a CMT group’s permission for an activity, they must do it in writing.

Under the current resource management system, the permission right doesn’t apply to all activities which require a resource consent.  Activities which are exempt from the permission right are called accommodated activities. Accommodated activities include emergency works, existing aquaculture, and certain infrastructure. For example, if a marine farm in your CMT area is applying to renew their resource consent and doesn’t intend to change the size of the marine farm, then it would be an accommodated activity and exempt from the permission right. There will be no changes to the exemption for accommodated activities in the new system.

The permission right also does not apply to activities that can go ahead without a resource consent. Activities that don’t need resource consents are called permitted activities. Permitted activities are decided at the planning stage. Permitted activities can be those where the effects on the environment are known and are manageable. 

In the new system, we expect there might be more permitted activities than there are currently. This is to make the system simpler and more efficient. To make sure the permission right still applies to the right activities, at the planning stage when regional planning committees are deciding which kinds of activities need a resource consent and which don’t, they will need to consider if the activity will or is likely to have a more than minor adverse effect on the relationship of a CMT group with their CMT area. This is a new requirement.

If the activity is likely to have a more than minor adverse effect on the relationship of a CMT group with their CMT area, the activity must be categorised as needing a resource consent or be a special type of permitted activity where the approval of the CMT group is needed before the activity can go ahead. 

This means something that will have a negative effect. The effect has to be more than nothing but doesn’t have to be huge. This also includes the cumulative (or combined) effects of different activities or processes over time. 

To work out which activities affect CMT groups in this way, regional planning committees will engage with CMT groups and applicant groups in the plan development process. This could involve looking at CMT groups’ planning documents as well (more on CMT planning documents below).

Engagement agreements

Engagement agreements will be a new part of the system to improve how Māori groups are involved in plan-making.  Regional planning committees must offer to enter into engagement agreements with all CMT groups in their region. It’s then up to each CMT group to decide if they want to go ahead with an engagement agreement.

An engagement agreement will set out how engagement on plan development between the regional planning committee and CMT groups will be undertaken. This could include things like how often hui need to take place and opportunities to provide feedback on documents, and what funding can be provided. 

Engagement agreements are an additional tool to support CMT groups to be involved in the planning process. CMT groups can still participate in the normal submissions process for plans and can create a CMT planning document (more information on this is below).

CMT planning document

CMT groups can create a planning document setting out what the group wants to happen in their CMT area. This is called a CMT planning document.

Under the current system, when councils are reviewing their regional policy statements and regional coastal plans, they need to initiate a process to:

  • recognise and provide for what you’ve said in your CMT planning document about your CMT area, and
  • take into account what you’ve said in your CMT planning document about the wider takutai moana area


In the new system, when regional planning committees are developing or reviewing regional spatial strategies and NBA plans, they need to initiate a process to:

  • recognise and provide for what you’ve said in your CMT planning document about your CMT area; and
  • actively consider what you’ve said in your CMT planning document about the wider takutai moana area. This is a stronger weighting than ‘take into account’. Iwi and hapū management plans will also have a stronger weight in the new system so the strength of CMT planning documents is being increased here to match.


Your CMT planning document may also be considered by the Minister responsible for aquaculture if the government is looking at getting involved to change an NBA plan for an aquaculture purpose. 

Until the new system comes into effect, a CMT planning document will continue to work under the RMA. Then if you have prepared a CMT planning document written for the RMA system you will be able to review it and write a new one to make sure it covers everything that you want it to under the new system. You will have the opportunity to do this before the new regional spatial strategies and NBA plans are developed.

Currently, councils also have to follow the New Zealand Coastal Policy Statement (NZCPS), which is prepared by the Minister of Conservation when they are making their plans. When preparing or reviewing the NZCPS, the Minister of Conservation must seek and consider the views of CMT groups.

In the new system, piecemeal national direction like the NZCPS will be replaced by the national planning framework. The Minister for the Environment and the Minister of Conservation when developing and reviewing coastal content for the national planning framework must seek and consider the views of CMT groups. 

Regional planning committees will need to follow the national planning framework which will set environmental limits and targets.

Environmental limits will be set to protect the natural environment as well as human health. Environmental targets will set goals to improve the environment. Both can be set on a national scale (such as setting a limit on the amount of pollution in the air) or can be set at a more local scale, called a ‘management unit’ (such as setting a target of population of freshwater mussels in a local river catchment).

Environmental limits and targets can also be set by relevant Ministers. If Ministers are considering doing this, they must consider what is appropriate for CMT groups. If they’re setting a target or a limit for a management unit that includes a CMT area, they also have to consider any CMT planning document.

Wāhi tapu protection rights in customary title areas

CMT groups may also have wāhi tapu conditions in their customary marine title area to protect wāhi tapu.

Wāhi tapu conditions affect how councils can make decisions on resource consents. A council can’t say yes to a resource consent that would be against the conditions for protecting the wāhi tapu.

Wāhi tapu will have the same level of protection in the new system.  The law will be clearer that activities cannot be categorised as permitted activities (permitted activities do not require a resource consent) at the planning stage if the activity will or is likely to breach the wāhi tapu conditions.

Protected customary rights 

Some takutai moana groups have had protected customary rights recognised, we refer to them as PCR groups. A PCR group does not need a resource consent to carry out the activity that the protected customary right relates to.

Protected customary rights are a matter of national importance under the RMA. This is in the purpose part of the RMA which means it is relevant for all kinds of decisions made under the RMA, like in planning and consents. The importance of protected customary rights will be continued through a new special provision in the purpose sections of the Natural and Built Environments Bill (NBA) and Spatial Planning Bill (SPA) which will apply for decision-makers under the new law.

A PCR group does not need a resource consent to carry out the activity that the protected customary right relates to.

This will remain the same in the new system, and PCR groups also don’t need to register their protected customary right separately with the council as a kind of permitted activity.

Under the current system, the council can’t say yes to resource consents that would have more than minor adverse effects on a PCR group carrying out a protected customary right without the written permission of the PCR group. This remains the same, but the law will be clearer that adverse effects include cumulative effects (the combined impact of different activities or processes over time).

This doesn’t apply to all activities. For example, the council can still say yes to:

  • marine farms that are staying in the same place and aren’t getting bigger
  • repairs or maintenance to existing ports
  • emergency activities.

Currently, if one of these types of activity might have adverse effects on a protected activity, the PCR group will still be notified about the resource consent and will have a chance to provide their views to the council. The council then needs to consider those views but does not need the permission of the PCR group to say yes to the resource consent. This will continue to be the same in the new system.

 

Te Arawhiti will update this information as the reforms progress and the Bills are introduced to Parliament. You can also contact Te Arawhiti at takutaimoana@tearawhiti.govt.nz if you have any questions about how takutai moana rights will be upheld in the reforms.

 

 

 

Edited November 2022.