“There are ‘big changes’ on the way in terms of how we are governed…”

After reading the Draft Auckland Unitary Plan, guest poster Christopher Lee now understands what Tipene O’Regan meant when he said there are “big changes” ahead on the way in terms of how we are governed.

At a meeting last week I listened to Professor John Burrows and Tipene O’Regan talk about the government’s Constitutional Review, on which they are panellists, where I was unsettled to hear O’Regan announce there are “big changes” ahead in terms of how we are governed.   (This was the same week he announced that all those opposing continued further Maori influence are next door to Nazi sympathisers.)

I have also been watching with particular interest the debate going on about the Draft-Auckland Unitary Plan.  An article by Michael Coote from the NBR on 31^st May (and his submission to the Council on the Plan), brought my attention to several issues of which I had previously been blissfully unaware. Maybe you’re also unaware of the passages in the Unitary Plan concerning issues of significance to those the plan dubs “Mana Whenua.” * Coote writes he is

concerned about the Maori racial supremacy bias that Auckland Council is attempting to embed permanently into its public policy through the Draft-Auckland Unitary Plan via Treaty of Waitangi-related clauses of legislation such as the Resource Management Act and various court decisions, and through additional political decisions Auckland Council has made off its own bat.
    This bias is particularly evident around, but not limited to, issues concerning … “Sites of significance to Mana Whenua” …

I’ve since had a read through the passages pertaining to Mana Whenua in the Plan, and I am very disturbed by the extent of the rights that would be granted to iwi over and above rights as Auckland citizens. Embedded throughout this plan are proposals which I believe attack the very heart of our democratic system and the property rights of ratepayers and citizens. In my opinion, if these are adopted it will create two classes of citizen, Mana Whenua and others.

Maybe this was what Sir Tipene O’Reagan was alluding to in his speech.

Our democratic and property rights are very important to me, as I imagine they are to the vast majority of fellow Aucklanders. It appears that here, as elsewhere, the terms ‘partnership’ and ‘principles’ of the Treaty are being used by local iwi to claim ‘co-governance’ of major resources.

Co-governance would establish a political system where the power and authority of one party, iwi, is unchallengeable by every other party.

This party is not appointed by the people, and therefore not accountable to the people. The Council’s ‘commitment’ to the Treaty therefore, as explained in the draft Unitary Plan, comes directly up against the principles of democracy.

There are two areas I have identified as being particularly concerning. These are:

• Mana Whenua having an “equal partnership” with Council in the management and governance of our natural resources would fundamentally undermine both the principle of equality of citizenship, and the democratic system it supports. Precedents have already been set here with the steering group set up for the Hauraki Gulf Marine Spatial Plan—the governance structure consisting of 8 representatives of our democratically elected governing bodies, and 8 Mana Whenua members. The justification for this 50/50 co-governance being “This structure provides equality of representation consistent with the principle of partnership within the Treaty of Waitangi.”
• The scale and extent of the Mana Whenua significant sites, which if they choose to do so, as it appears in the plan, would enable iwi to inflict their wishes upon the property rights of other citizens; imposed on the say-so of iwi authorities, unaccountable to anyone else in Auckland.

I believe it is abundantly clear that Mana Whenua influence would not be confined to environmental governance and resource management. Precedent here has been set under section 85 of the Local Government (Auckland Council) Act 2009, which allowed the Independent Maori Statutory Board to appoint a maximum of two persons to sit as members on each of the Council's committees that deal with the management and stewardship of natural and physical resources.

These members are unelected, with full voting rights alongside our democratically elected councillors.

However, the Independent Maori Statutory Board's legal advice suggested that the entitlement to appoint representatives are even more extensive than many probably anticipated. Consequently, unelected Independent Maori Statutory Board members sit on 16 Auckland Council committees and forums, and nominated members also sit on a range of hearings panels and working parties. Most of these bodies have no obvious link to the stewardship of physical and natural resources.

The Unitary Plan clauses that give me most concern are outlined below:

In Section 2.1.4 under the heading “Decision making, environmental governance, partnerships and participation:

• “Mana Whenua seek greater participation in resource management decision making. They want co management, joint management and co governance arrangements concerning shared decision making”; and
• “Building stable and equal partnerships is an important process for Mana Whenua to enable active and meaningful participation in the management of natural resources.”

There is even provision for Mana Whenua to take full control in some instances, for example:

“The full transfer of powers in accordance with s. 33 of the RMA is an option Mana Whenua would like to pursue for particular resource management activities”.

And again in Section 2.5.1 it is shown just how wide ranging these powers could be:

“Objective no. 4 [under the heading “Recognition of Te Tiriti o Waitangi partnerships and participation”]
‘Enable the transfer of powers and/or establishment of joint management agreements for certain functions relating to the development and management of ancestral lands, water, air, coastal sites, wāhi tapu and other taonga, and the sustainable management of natural and physical resources, where an iwi authority:
           a. has an ancestral connection or mana over a resource 
           b. has a clear mandate to represent the interests of that iwi or hapū
           c. can demonstrate the ability to fulfil the requirements of the RMA, whether directly 
                or by  outsourcing.”

The scale and extent of policy regarding Sites of Significance to Mana Whenua is also wide ranging, not only numerically, but also in scope, i.e. not just confined to sites but to include whole areas. If these proposals were to be adopted there is the likelihood that the property rights of many citizens would be impacted upon. These sites are to be nominated on the say-so of Mana Whenua. I see nothing in the Unitary Plan allowing any such such assertions to be challenged by any affected parties.  See if you can:

Section 3.1.2 Māori cultural heritage
There are thousands of areas, features and sites within Auckland where there is a high likelihood of Māori cultural heritage being discovered or affected.

Māori cultural landscapes (areas of significance to Mana Whenua)
Māori cultural heritage extends beyond individual sites of significance and includes wider ‘areas’ of historic occupation, where Mana Whenua values and associations with the landscape are reflected through landmarks, place names, portages, areas of seasonal occupation and historical transport routes that are also of importance to Mana Whenua.
    Mana Whenua liken their cultural landscape to their cultural footprint/tapuwae – which is of Maori cultural heritage in its own right. It is not site-specific; rather it is the context of the landscape, the volcanic maunga fields, and the numerous waterways and tributaries overlaid by layers of Maori history. Maori cultural landscapes provide the context and identify relationships within which areas, features and sites of significance to Mana Whenua exist, recognising that sites do not exist in isolation.....................................”

Section 3.1.2 Information management
Maori knowledge is traditionally passed down orally from one generation to the next. Tohunga and kaumatua are repositories of knowledge and are highly regarded for their knowledge of the spiritual and physical realms. These customs are still commonplace in Maori culture and it is important that sensitive information is managed in accordance with protocols that have been agreed with Mana Whenua.

Section 3.3.5.2 - Sites of significance to Mana Whenua
Where there is sensitive information regarding the significance of the sites special protocols agreed with Mana Whenua will outline the management of this information.
    Mana Whenua are aware of many other areas, features and sites that may be equally or more significant, and acknowledge there may be shared interests over scheduled locations. It is intended to identify further areas, features and sites nominated by Mana Whenua through future plan changes including those identified through other legislation.

Objective

1. The tangible and intangible values of scheduled sites and features of significance to Mana Whenua are protected and enhanced.

Policies

1. Avoid adverse effects on the values of scheduled areas, features and sites of significance to Mana Whenua.
2. Require subdivision, use and development to:
   a. enhance the values of the area, feature or site of significance and the relationship of Mana Whenua with their tāonga, commensurate with the scale and nature of the planning application
   b. incorporate mātauranga, tikanga and Mana Whenua values, including spiritual values
   c. incorporate the outcomes articulated by Mana Whenua through consultation and within iwi planning documents
   d. demonstrate consideration of practicable alternative methods, locations or designs which would avoid or reduce the impact on the values of sites of significance to Mana Whenua
   e. include mitigation that is compatible with Mana Whenua values and is commensurate with the extent of the effects.
   g. demonstrate consideration of practical mechanisms to maintain or enhance the ability to access and use the area, feature, site for karakia, monitoring, customary purposes and ahikā roa by Mana Whenua.”
3. […]
4. […]
5. […]
6. Manage subdivision so that areas features or sites of significance to Mana Whenua are not split into multiple land parcels.

4.1.16.1 Treaty of Waitangi and Mana Whenua and also 4.1.16.1.1 Consultation and engagement

1. The provisions below provide guidance as to when consultation and engagement is required with Mana Whenua for resource consent applications, applications for public and private plan changes and notices of requirement.
2. Engagement with Mana Whenua is required for resource consent applications, applications for public and private plan changes and notices of requirement which involve any activity that is on, adjacent to, or likely to impact on Mana Whenua values and interests in relation to:
    a. ancestral lands, water, air, coastal sites, wāhi tapu and other tāonga, for example:
        i. any areas, features or sites of significance to Mana Whenua including Māori cultural
           landscapes identified within iwi planning documents
        ii. any sites of cultural, historical or spiritual significance to Mana Whenua identified within the
            Sites of Significance to Mana Whenua overlay
        iii. where Māori cultural heritage is present or there is a high likelihood of Māori cultural heritage
            being present…
    c. the exercise of kaitiakitanga [guardianship] over resources of particular interest to Mana Whenua, for example, coastal areas, waterways, geothermal, ecological areas and matters relating to the mauri [life force]of natural and physical resources associated with freshwater, ecosystems and the coast. In particular, when applications are required for the following:
        i. discharges of waste water
        ii. discharges of to air
        iii. take or use of surface water, ground water or geothermal resources
        iv. the construction of a dam
        v. damming of water
        vi. drilling to construct a bore
        vii. structures affecting river beds and the [Coastal and Marine Area]
        viii. disturbance to river bed and the [Coastal and Marine Area]
        ix. reclamations.”

That’s a fairly comprehensive range of private places, properties, plans and projects over which the Draft-Auckland Unitary Plan proposes granting unelected Maori representatives virtual veto power.

If you are not already aware of the issues raised, I suggest that you take a look at the unitary plan found at: http://unitaryplan.aucklandcouncil.govt.nz/pages/xc.enquire/UnitaryPlanElectronicPrint.aspx

I refer particularly to the proposed rules in these sections:

1.2; 2.1.4 ; 2.5; 2.5.1; 2.5.2; 2.5.4; 3.1.2; 3.3.5.2 ; 4.1.16.1.1; and 4.4.5.1 (2) Notification.

I can understand and appreciate the desirability of governance arrangements that value Maori knowledge and participation. However we cannot ignore the fact that iwi, wishing to realise their economic potential following treaty settlements, are developing commercial arms which are at the start of a growth phase. This being so there is a high likelihood of potential conflicts of interest in iwi being both regulatory decision makers and also commercial developers.

You may share my concerns and if so it would be great if you could alert others by raising this with associates, friends and family.

* * * * *

* Defined by Te Puni Kokiri as “the exercise of traditional authority over an area of land [whenua].”