RMA Iwi Consultation Grossly Abused

Corrections Minister Paul Swain was incorrect to claim that paid consultation with Iwi was a statutory requirement under the Resource Management Act - there is no such requirement in the Act, ACT New Zealand Deputy Leader Ken Shirley said today.

"He could be excused for thinking as much, as a mature industry has now developed around that expectation," Mr Shirley said.

"Large corporates, middle-sized companies and Government Departments, in particular, are now seen as soft targets for substantial `consultation payments'.

"In the worst cases, the payments are no more than extortion, and not surprisingly, graft and corrupt practices thrive in this environment.

"Section 8 of the RMA under the heading `Treaty of Waitangi' states:

"In achieving the purpose of this Act all persons exercising function or powers under it in relation to managing the use, development and protection of natural and physical resources shall take into account the principles of the Treaty of Waitangi."

"This clause has been interpreted to require consultation with tangi whenua. Case law has further determined that consultation with tangi whenua - under the principles of the Treaty - requires more than passive notification, but requires a particular regard to Kaitiakitanga - which is interpreted as `the exercise of guardianship including the ethic of stewardship.

"Some legal opinion suggests that the requirement to consult with Iwi is confined to the formulation of a District or Regional Plan, and not a requirement for every individual resource consent application - but Councils are overwhelmingly adopting the latter approach.

"Councils are regularly entering into contracts with Iwi representatives to involve them in resource consent applications and then the Iwi send the bill to the applicants, not the Council. This is a breach of the Fair Trading Act as any commercial lawyer could advise. Councils also often grant consents with a clause requiring the Iwi's satisfaction on the conditions imposed. This involves the applicant in another round of costly consultation before they can exercise their consent rights.

"Payment for consultation was never envisaged by those who drafted the Act and the presumption had been that everyone would bear their own costs. Such a requirement would provide a discipline confining issues of dispute to matters of substance. Instead we are confronted with an open-ended round of consultations, which often focus on metaphysical concepts based on spiritual belief.

"We should not be surprised when taniwha assume extraordinary prominence during the recourse consent stage of a development project only to mysteriously disappear after several rounds of very expensive Iwi consultation.

"The RMA was intended to provide for the sustainable management of natural and physical resources, but it has been allowed to degenerate to an abyss of costly uncertainty for resource consent applicants, and a corrupt ticket clipping industry for Iwi," Mr Shirley said.

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