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Government proposals for foreshore and seabed consultation

The Foreshore and Seabed of New Zealand - Full Report on the Analysis of Submissions

5   PRINCIPLE OF REGULATION
Contd.

5.2   Local government

Further background from the discussion document

The discussion document notes that many Maori have been dissatisfied with the way in which some local authorities give effect to the requirements of the Resource Management Act; and there is general concern over a lack of implementation and uptake of the fisheries systems that support customary non-commercial food gathering and the exercise of authority over traditional fisheries. The government is aware of these concerns and continues to work to address them in appropriate contexts.

Discussion Document P 26


5.2.1   Support for local regulation

Many respondents support local government as the regulatory authority.

“The Crown should continue to be responsible for regulating the overall use of the foreshore and seabed, through the Resource Management Act (1991) with local responsibility for the regulation of activities devolved to Regional Councils or Unitary Authorities through their Coastal Plans.” (West Coast Commercial Gold Miner’s Association Inc)


5.2.2   Local ownership

Some respondents felt the foreshore and seabed should be owned at the local level.

“Ownership of the foreshore and seabed should be vested in local bodies rather than the Crown. I believe that the bottom line for all Kiwis (Maori and Pakeha) is that they wish to see access and protection simultaneously. Most of our coastline is sparsely populated and unregulated. The people who have the most vested interests in it are those who live there, yet they usually have the least say in what goes on at their doorstep.” (Individual)


5.2.3   Room for improvement

Some respondents felt local government could do a lot more to maintain and protect access to the foreshore and seabed.

“Many opportunities to obtain coastal access in the form of esplanade reserves have been lost through the legislative approach permitted by the Resource Management Act. ... Subdivision provisions of the Act could be reviewed to better reflect the public’s desire for coastal and water access.” (Individual)

“Part II of the Resource Management Act articulates similar principles in respect of access to and across the foreshore and seabed and, despite over a decade as a national priority, there appears to be little evidence of progress. In our region there is evidence of councils actively avoiding acquisition of foreshore for fear of the rates/maintenance burden.” (Environment Bay of Plenty)

Many respondents felt local government could do a lot more to maintain and protect the environment.

“The Crown no doubt is aware of our long running action with the local Gisborne District Council on the sewerage and wastewater disposal into the bay. ... The Environment Court’s recent decision upholding our objections was well received and the Gisborne District Council has been given two years to remedy the issue. No doubt they will appeal, but we will persevere. The cost to date has been enormous for us. ... Accordingly, we urge improvements to key management legislation such as the Resource Management Act and Local Government Act.” (Rongowhakaata Iwi Charitable Trust)

“Local and territorial governments have powers of regulation but have never shared power under section 33 of the Resource Management Act 1991 with any hapu to date. Instead some of our regulators are the worst offenders in polluting and abusing our foreshore and seabed. The Waikato District Council sewage pipeline crosses our land and discharges wastewater to sea polluting our kaimoana and waterways. These practices impact on our ability to carry out our responsibilities.” (Tainui o Tainui ki Whaingaroa and eight supporting organisations)

“Perehipe Beach: What is wrong with the FNDC to allow storm-water discharge to wash out our ancient burial grounds, which are all around our sand dunes? ... The FNDC knows we have burial grounds around our sand dunes and it refuses to register them as wahi tapu and they get washed out. They sit there and say they don’t know what to do. Leave it to us. We do know what to do.” (Hui participant, speaking on behalf of Ngati Kahu and Te Taitokerau)

A major concern was that commercial interests, especially those of large corporations, hold sway on an uneven playing field. Maori were seen as particularly disadvantaged in terms of resources, especially at the level of whanau and hapu.

“... Other attempts were made by the Crown in 1975 to designate the entire coastline around the manaia and Te Kouma harbours as public reserve. This was followed immediately afterwards with an application by mining giant Conzinc Rio Tinto to explore for gold in the Manaia harbour and up the Manaia river ... This took all the resources of our tiny community to get both to finally back off. Is it any wonder we stand here today to reject further Crown attempts to strip us of our tino rangatiratanga over our moana?” (Individual)

Some respondents suggested that local government focuses on revenue collected by permitting commercial development, to the detriment of other interests, which contravenes public policy, regulation and law.

“I have observed a conflict of purpose amongst local authorities who wish to increase their rate take versus the need to preserve the natural character and public access to the coast, for the benefit of all New Zealanders. Much stronger direction from government perhaps through the New Zealand Coastal Policy Statement is required on these issues. Developers can afford to buy top legal and specialist advisors at hearings whereas the general public cannot. Unfortunately, such an imbalance can favour an increasing loss of pristine coast and public access to it as hearing committees and the Environment Court are strongly influenced by the sheer weight of evidence from those who can afford it.” (Coastal management consultant)

“Far North Holdings Ltd, which already OWNS the seabed around the wharf, is currently awaiting a decision on its application for MORE seabed – the reclamation of 3500 cubic metres for PARKING for a period of 35 years. No question of public domain here is there?” (Individual)

“Much legislation is weak and dominant commercial interests find ways of achieving their commercial goals to the detriment of the environment and biomass.” (Individual)

“Central government needs to look closely at what local government are allowing or doing to the foreshore and seabed under the Resource Management Act” (Individual)

Local government respondents felt that the constraints that they work under are not well appreciated.

“There have been suggestions in the debate so far that part of the responsibility for the current situation lies with local authorities for failing to give effect to their responsibilities to Maori under the Resource Management Act. That is an unfair charge. As the government has acknowledged in the context of various applications for consent to use the rivers of the Waitaki River, the Resource Management Act does not provide a basis for making decisions on the allocation of a scarce resource. The same is true of the coastal marine area which, as experience is showing, is a finite an increasingly scarce resource.” (Environment Waikato)

“We believe that Territorial Authorities have ample legislative mandate to work towards achieving better coastal access but are in a large part hamstrung by a lack of resources and other more pressing priorities.” (Environment Bay of Plenty)

Some respondents urged the government to take steps to ensure that existing measures are implemented fairly and effectively.

“The Resource Management Act must be retained but needs to be more mandatory. Planning documents must provide an opportunity for public input when activities in ‘the commons’ are being considered. Local body empire building and business lobbying must not be used to lock the public out of the decision making process. The carrot of commercial opportunity/benefit should be less persuasive in today’s climate wherein protection of the environment and its natural character are becoming more important.” (Individual)

“The Resource Management Act Maori and Treaty provisions have no mana, are toothless and do not protect our rights. ... In effect these regulations act as a veto on Maori rights and aspirations.” (Hui participant, speaking on behalf of 30 others)

“Where legislation and policy already refer to te Tiriti ... then these provisions should be monitored by the appropriate body (the Law Commission for example) to ensure that they are being implemented effectively. Where expert bodies such as the Waitangi Tribunal have made recommendations about the reform of legislation to strengthen the role of te Tiriti ... these recommendations should be implemented.” (Te Runanga Roia o Tamaki Makaurau/Auckland Maori Lawyers’ Association)


5.2.4   Partnership with Maori

Several examples of healthy partnerships between local government and Maori were cited.

“The Board is aware of the Whale Stranding Protocol with Ngatiwai as one example of effective partnership models.” (Auckland Conservation Board)

“Auckland City Council already uses two co-management models that share authority between Auckland city and local iwi:

  • management of Takaparawhau (Bastion Point)
  • Tawaiparei and Rangihoua reserves on Waiheke Island

“... There is potential within existing legislative provisions for greater use of such models.” (Auckland City Council)

More commonly though, local government were criticised for failing to consult properly with Maori as required under the Treaty of Waitangi, or to take sufficient consideration of Maori viewpoints when they did.

“Government agencies ask to meet with us, where they tell us what they intend to do. We point out what has worked for centuries, but they do not listen. They call it consulting. We call it insulting.” (Waitutu Incorporation)

“At the local government level whanau, hapu and iwi must also be given some whanau regulatory input proportionate to numbers on the Maori electoral role.” (Individual)

“We strongly object to the use of the Resource Management Act (and other legislation) to privatise areas of the foreshore and seabed by the way of allocation of coastal spaces, reclamation and granting of resource consents, for commercial use within our takiwa without first consulting us. We also object to the granting of discharge consents and other activities that result in pollution or degradation to areas of the foreshore and seabed.” (Te Runanga o Waitaha me Maata Waka Iwi Authority Inc)

“... From experiences with our local Crown agencies such as Environment Bay of Plenty, such principles are too often to be interpreted ‘their way’.” (Individual)

“I could go with many more examples of considered derogatory treatment by a Crown agency ... despite us having turned into a new millennium that is supposedly characterised by building a united society, respect for cultural differences, sensitivity to others, and other wonderful ideals, the workings at a local bureaucratic level still are not reflective of such principles.” (Individual)

Some respondents said that poor relationships between local government and Maori sometimes arise from a perception that local government is not a legitimate representative of ‘the Crown’.

“The relationships between regional councils and Maori aren’t always good. Some Maori want to deal with the Crown, and this could be part of the problem.” (Outdoor Recreational Groups)

Maori wanted to have more influence on general practice with respect to the foreshore and seabed.

“There should be local solutions to local issues, with fair and equal sharing of power between iwi and hapu and local government.” (Lester Tuaine Whanau Trust)

“As an incident of our customary ownership of the foreshore and seabed within our rohe, all commercial users must pay a reasonable rental for any economic activities conducted within our territory, to our iwi. We must be involved in all processes/decisions which affect foreshore and seabed within our territory.” (Wiremu Tomas and Hinerangi Rapihana Whanau Trust)

Many believed local government needs better legislation, tools, resources and incentives to work alongside Maori in the manner envisaged by the Treaty and expected by most New Zealanders today.

“Regardless of the fact that the protection of the rights guaranteed under article Two of the Treaty of Waitangi are enshrined in the Resource Management Act (1991, Part II Purpose and Principles), it is my experience, after presenting submission after submission ... that consent authorities refuse point blank to give cognisance to our real concerns. The Crown needs to:
1.) Heed the guarantees it made under article 2 when designing and implementing policies
2.) make sure that local government bureaucrats uphold policies and laws that oblige to take into account Treaty obligations, and
3.) Assist in the protection of Maori property and use rights being defined to a greater degree in the Resource Management Act

“This is necessary to stop local government from sidestepping their obligations as they have done to date.” (NZ Federation of United Seafood Interests Inc.)

“It is really local government and the Resource Management Act that needs to be looked at – the Resource Management Act needs to be strengthened – it doesn’t go far enough – you can participate but there is no obligation to listen.” (Individual)

The need for greater monitoring and accountability were also raised.

“We sure as hell were mad about the behaviour over 1991–1996/7 of the Marlborough District Council, who displayed discriminatory behaviour. There is no monitoring of Councils and there should be the same monitoring as of any Crown agency.” (Hui participant, speaking on behalf of Ngati Tama)

“The document makes no mention of the Crown’s failures to monitor the ways regional councils undertake their delegated authorities and responsibilities under the Resource Management Act, especially those responsibilities deriving from sections of the Act referring to treaty issues, tangata whenua and the like.” (Ngati Tama Manawhenua ki Te Tau Ihu Trust)

Many respondents were optimistic that the working relationship between local government and Maori could be improved.

“While we have had major difficulties with our local authorities, we believe that we are still capable of setting policy and operations that address the hard issues and that are focused on positive and durable agreements for our local community.” (Whanganui River Maori Trust Board)

Some respondents were opposed to, or wary of, greater involvement of iwi and hapu in local government.

“There should be no extension of Maori consultation/decision making responsibilities (insofar as they impact on local government) beyond those recorded in current legislation.” (Wellington Regional Council)

“If any increase in Maori consultation/decision making responsibilities were proposed, Council would be concerned about the availability of funding of resources to increase Maori participation.” (Western Bay of Plenty District Council)

Local government submissions frequently identified the need for co-management with Maori.

“One issue that is not addressed explicitly in the discussion document, but which rises frequently in the context of Maori interests in the coastal marine area, is the extent to which Maori should have a decision making role in relation to occupation and use of resources in the coastal marine area. In our experience this is often the most fundamental issue for Maori, next to ownership.” (Environment Waikato)

“It is our understanding that the granting of a Coastal Permit for a structure, by a regional council, is effectively granting consent by the Crown as owner of the foreshore and seabed. The Council believes that there needs to be a more explicit process for granting consent in future. The Council would suggest that one model may be the establishment of a statutory body, equally represented by Maori and non-Maori, which would be tasked with the responsibility of formulating what could be a national policy statement document for this subject, which would give clear direction to regional councils when considering the grant of coastal permits.” (Christchurch City Council)


5.2.5   Partnership with non-Maori

Like Maori, non-Maori also want a greater role in local regulation, and many land owners have been active in protecting foreshore and seabed in various ways.

“Landowners’ rights are paramount. In our case we allow everyone access but require that they respect shellfish beds and fire bans. That way environmental issues can be policed by us.” (Individual)

“The protection of our fish/shellfish stocks is not by the risk of prosecution alone, but also the isolation and discretion of access by landowners/occupiers. In our area alone the foreshore has eroded 40–50 metres back onto private title effectively creating title onto the foreshore. The issue of compensation for the taking of land and property rights has not been addressed, and they must be for this issue to work” (Individual)

“Maori and European coastal property owners must be granted joint guardianship of the foreshore to protect the fragile eco-system and resource.” (Individual)

“In this region the cooperation, respect and understanding of Maori and European farmer to acknowledging mana and ancestral association is a credit to earlier generations on both sides. No change is necessary.” (Individual)


5.2.6   Maori autonomy

Many Maori said that it was their prerogative to manage the foreshore and seabed, either because they ‘own’ it (through private title or tipuna title) and/or have a duty to do so under kaitiakitanga. Some asserted that Maori had been managing the foreshore and seabed successfully in accordance with tried and true customary practices for centuries.

“O friends it is wrong, it is evil. Our voice, the voice of Hauraki, has agreed that we shall retain the parts of the sea from high water-mark outwards. These places were in our possession from time immemorial ... Why do you desire to seize heedlessly upon these places? ... The men, the women, the children are united in this, that they alone are to have the control of all the places of the sea ...” (Quote from 1869 petition to Parliament by Tanumeha Te Moananui and 26 others, cited by Hauraki Maori Trust Board)

“Kaitiakitanga – we are responsible for controlling, using and managing resources in a way that they can be passed down as whenua tuku iho according to tikanga.” (Hui participant, speaking on behalf of Ngati Kahu and Te Taitokerau)

“Pakeha law cannot change our kaitiakitanga, it can only make it easier or harder for us to carry out our responsibilities.” (Hui participant, speaking on behalf of Manukau Urban Maori Authority)

Some respondents challenged the generalisations about levels of competency and success.

“Most damage to the New Zealand environment, including to the foreshore and seabed, and to the fish and other animals and plants that live there, has been the result of post-1840 immigration and its consequent activities. However, Maori also should accept that the Maori record in conservation is not without criticism. The extinction of all the species of Moa and other native birds ... Even today, activities by some Maori are inappropriate. This is illustrated by continued over-killing of Kereru/Kukupa/Kuku in some parts, plundering of some shellfish beds, and some disregard for fishing regulations.” (Individual)

It was noted that there are varying attitudes, knowledge and skill in any community, and this places limits on the degree of autonomy that is appropriate. It was suggested that Maori management at a local level would need to be monitored.

“There is an issue of protecting and maintaining New Zealand’s resources at stake. Maori leaders need to be called on to set processes in place to hold such protections to account, and be worked alongside to achieve this.” (Individual)

Some non-Maori took exception to any suggestion that Maori should manage the foreshore and seabed independently. Many non-Maori felt very strongly that they need or want to be involved in coastal management.

“Environmental responsibility is the prerogative of all New Zealanders, not the exclusive preserve of Maori.” (Individual)

“Maori accepted British law by signing the Treaty, and customary rights are now recognised and honoured and we’re getting better at it.” (Individual)