Resource management takutai moana rights
Some of the rights under te Takutai Moana Act 2011 connect to the Resource Management Act 1991
This page outlines some of the most important rights for takutai moana applicants and rights holders in consenting and planning in the resource management system.
The resource management system and te takutai moana
The Resource Management Act 1991 (usually called the RMA) is the main piece of legislation that sets out how the environment is managed, including the takutai moana.
The RMA says that councils must set rules and requirements to manage activities and structures in their local area. In the takutai moana, this includes things like managing pollutant run-off into the sea, setting up an aquaculture farm, taking sand from the beach, or building a jetty.
Councils make plans
Councils have to put the rules in plans. These plans set out what can or cannot be done, and if specific permission is needed to use a resource.
For the takutai moana, these rules are in the regional coastal plan. This kind of plan might make rules that say, for example, you cannot put a petroleum mining platform in a place that is environmentally significant or that you have to ask the council before you can put in a pontoon at your local beach.
Usually it’s the regional council that makes regional coastal plans (e.g. in Canterbury the regional council is Environment Canterbury).
But in some places the regional council’s job has been combined with the district or local council. For example, in Auckland the regional coastal plan is made by Auckland Council, which is a unitary authority.
You can find a full list of councils here(external link).
Councils also make a regional policy statement which says what the council is trying to achieve in the region, including in the sea and coast. A regional policy statement might say, for example, that the council wants to improve water quality so that plants and animals are healthy.
Then when the council comes to make its regional coastal plan, it must look back at its regional policy statement and make sure the rules carry out what it said it wanted to do in its regional policy statement.
Councils also have to follow the New Zealand Coastal Policy Statement. The current New Zealand Coastal Policy Statement includes policies about protecting nationally important surf breaks (like Manu Bay in Raglan) and improving free and easy walking access along the coast.
The Minister for Conservation prepares the New Zealand Coastal Policy Statement. The latest one(external link) was prepared in 2010.
This diagram shows the hierarchy of planning in the resource management system. Plans follow policy statements, and policy statements follow the NZCPS.
Councils grant consents
Another job of councils is handling resource consent applications. In the takutai moana, the regional coastal plan tells you when you need to get a resource consent to do something. Often these are just called consents.
You might need a consent to:
- build a wharf
- put stormwater into the sea
- ‘reclaim’ the area by filling it in with land
Usually, it is the council who decides if a consent is granted or not. But sometimes if the consent is for a nationally important project, that decision is made by the Environmental Protection Authority(external link).
Takutai moana groups have rights in the resource management system
Takutai moana groups – made up of applicants for customary marine title, and customary marine title and protected customary rights groups – have special rights in the resource management system to influence what happens in their customary area.
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 groups’ views on the activity. This needs to happen before they lodge their consent application with the council. In this case, the applicant groups’ views aren’t the final word on what happens to the consent. The council still decides whether or not to say yes to the consent.
You can double-check where you have applied for CMT by looking up your takutai moana application on Kōrero Takutai(external link).
|Example: your neighbour wants to put in a new mooring line in your CMT application area|
You and your whānau live in a beautiful bay. Your family has been there for generations and you have applied for customary marine title there.
One of your neighbours has a bach in the bay and they want to put in a mooring line tied to a buoy so they can bring their new boat round to their place.
They need a resource consent from the council to put in the mooring line. But before applying for the consent, they first need to come to you because they know you have applied for customary marine title there.
They ask what your whānau thinks about the mooring line. You tell them it’s okay so long as it doesn’t get in the way of the fishing whānau do around there.
Once they’ve heard your views, your neighbour goes to the council and applies for the resource consent. Your neighbour goes ahead and applies for the resource consent, letting the council know that your whānau are okay with the mooring line. The council considers whether there are any reasons not to grant the consent, and decides the mooring line can go ahead.
If you have customary marine title
Some takutai moana groups have had customary marine title recognised. These groups are called customary marine title (CMT) groups and they have more legal rights over their CMT area.
The right to say 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.
The way it works is that the person who wants a resource consent must come to your group and ask for your permission for the activity. The resource consent applicant must do this after every other step is finished in the council’s consenting process.
Your group then has 40 working days to decide. You can read through the information about what the person is wanting to do, talk to others, and then decide if your group is happy for the activity to go ahead or not.
If you say no, the activity can’t go ahead.
If you say yes, the activity can go ahead. It must then only be carried out the way your group agreed.
|Example: someone wants to expand their mussel farm in your CMT area|
Your hapū has customary marine title in a tidal inlet. There are lots of existing mussel farms in your title area.
One of the mussel farms wants to expand and is keen to do this when their current resource consent runs out next year.
Your hapū have the right to say yes or no to this. This is called an RMA permission right.
The mussel farmer comes to you early to see if your hapū agree to their bigger mussel farm. You talk to the farmer and take their plan back to your hapū who will decide whether to say yes to it going ahead.
Your hapū think it’s okay so long as the consent is only for a short time, and if you can be more involved in the farm.
The mussel farmer agrees to work with your hapū on this and you enter into some arrangements with them. Your hapū say yes to the bigger marine farm, and the consent is granted for the length of time you agreed.
This RMA permission right doesn’t apply to all activities. For example, your CMT group doesn’t get to say yes or no to:
- things that are already there (e.g. existing jetties)
- existing marine farms that are staying in the same place and aren’t getting bigger
- repair or maintenance to existing ports.
In these cases, your group will still be notified about the resource consent and will have a chance to tell the council what you think about the activity. The council then needs to consider your views.
There is a slightly different process for important new infrastructure (like bridges, pipes and ports). If new infrastructure is being proposed that is essential for economic or social well-being, then the person seeking to build the infrastructure must either:
- talk with your CMT group and work out a way for you to agree to the project
- go through a process where the Minister for Land Information considers whether and how the project can go ahead and if your CMT group should be compensated
|Example: someone wants to build a port in your CMT area|
Your iwi has customary marine title in a harbour. A company is wanting to put in a new port to ship out some of the logs from the local forest.
This is a pretty major project. Because it is such significant infrastructure there is a different process for how your rights tie in.
The company first comes to you and asks if your iwi might say yes to the project. You talk for a while about what the company is wanting to do.
You go back and kōrero as an iwi and you decide you’re not sure if a new port is a good idea in your customary marine title area. You want to know more about it.
The company wants a quick decision and goes to the Minister for Land Information.
The Minister looks at what talks the company has already had with you and decides the company hasn’t showed they’ve spent enough time trying to work things through with your iwi.
The Minister tells the company it needs to do some more work before coming back again.
The right to create a planning document
CMT groups can also create a special document setting out what the group wants to happen in their CMT area. This is called a CMT planning document.
CMT planning documents influence the planning part of the council’s process.
Your CMT planning document can set out your aspirations for your CMT area, and any wider part of the takutai moana around it. You can also say what policies you think will achieve your aspirations. You lodge this with the council.
Then when councils are reviewing their regional policy statements and regional coastal plans, they need to:
- recognise and provide for what you’ve said in your CMT planning document about your CMT area
- take into account what you’ve said in your CMT planning document about the wider takutai moana area
The words ‘recognise and provide for’ have a particular legal meaning. It essentially means actually find a way to provide for (but the council doesn’t necessarily have to do this in the exact way you say).
’Take into account’ means that your views will go into the mix of all the information the council considers when making a decision.
The council will be thinking about a few things when deciding if they need to change anything in their plan to include your CMT planning document:
- if what you’ve asked for is already in the plan/regional policy statement
- whether doing what you’ve asked would achieve what the RMA seeks to do (in short, to sustainably manage resources)
- if the council can better do what you’ve asked in a different way (i.e. not using the plan)
|Example: a CMT planning document to keep kaimoana healthy|
Your customary marine title area has big open stretches of beach that rivers flow into from across the plains. Just off the coast there are some rocky islands where you go to gather kaimoana.
You’ve put together a customary marine title planning document which says you want the water around these islands to be healthy so your kaimoana is healthy. You have given this to the local council.
The council is updating its regional coastal plan, and is thinking about what rules are needed about the amount of bacteria that’s flowing into the sea from the rivers.
The council needs to look carefully at your planning document and your goal of having healthy water and kaimoana. The plan then needs to recognise and provide for this somehow.
One way of doing this is to say there needs to be less pollution in your part of the coast.
The council talks to you during the process of changing its plan to hear if this all sounds okay to you. You agree and this goes in the council’s draft plans which then need to go through the normal plan approval process.
If you have a wāhi tapu protected area
You might also have a wāhi tapu area protected in your customary marine title area.
If you have a wāhi tapu area, there will be some rules in the legal document which set out how it needs to be protected. For example, it might say that no one can enter the wāhi tapu area without the CMT holder’s permission.
The rules protecting a wāhi tapu affect how the council can make decisions on resource consents too – the council can’t say yes to resource consents that would be against the rules for the wāhi tapu.
So, if one of the restrictions is that no one can enter without the CMT group’s permission, the council wouldn’t be able to grant a consent that allowed unrestricted entry.
If you have protected customary rights
Some takutai moana groups are close to having protected customary rights recognised (PCRs). These can be for a whole range of different activities you carry out in the takutai moana. For example, protected customary rights can be recognised for:
- gathering hāngī stones
- launching waka
- taking wai for rongoā
You don’t need a resource consent to carry out a protected customary right. This means you don’t need to ask the council if it’s okay for you to keep carrying out your customary activity – you can do it as a right.
The council also can’t say yes to resource consents that would have more than minor adverse effects on your group carrying out the protected customary right. The council will carry out a special process to figure out what the effects might be, which includes thinking about whether the resource consent activity could happen somewhere else and if there’s a way for it to be carried out that would have less of an effect on your PCR group.
This is another common phrase used in the RMA with a special meaning. It basically means something that will have a negative effect on you. The effect has to be more than nothing but doesn’t have to be huge.
Even if the activity would have more than minor adverse effects on your PCR group, you still have the choice to say the activity should go ahead anyway. You can work this out this directly with the person seeking the resource consent. Your permission needs to be in writing.
|Example: : you have a protected customary right to collect hāngī stones|
You go to the river mouths in your rohe moana to collect hāngī stones for your whānau. You keep these at home to use for special occasions. You have a protected customary right to go and do this.
The council has now received an application from a company to come in and take stones and gravel from the river mouth. They want to use the stones to make all kinds of products in construction.
The company’s taking of stones might mean there are less for you to take for hāngī. Its activities might also involve heavy machinery which could make it unsafe for you to be there at the same time.
When looking at the application, the council considers this and decides this means it would have a more than minor adverse effect on your protected customary right.
The council also checks with you to see what your whānau think about the proposal in case you think it’s okay. You tell the council that whānau are not happy with it.
The council can’t grant the resource consent. The company has to re-think its plans.
But 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
- repair or maintenance to existing ports
- emergency activities
If an activity might have adverse effects on your PCR, your group will still be notified about the resource consent and will have a chance to tell the council what you think about the activity. The council then needs to consider your views.
The RMA is being changed
The government is changing the RMA. This work is being led by the Ministry for the Environment.
As part of this, the government has committed to upholding your takutai moana rights. With a new system, it is important we find ways to include the rights so they are the same strength as now.
Te Arawhiti and the Ministry for the Environment will be in touch with applicants and rights holders under te Takutai Moana Act and Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act later this year to ensure we get this right.