The Local Government and Environment Select Committee

Transcription

1 He tono nā ki te The Local Government and Environment Select Committee e pā ana ki te Environmental Protection Authority Bill 28 January 2011

2 contents EXECUTIVE SUMMARY...3 TE RŪNANGA O NGĀI TAHU...4 TE RŪNANGA INTERESTS IN THE ENVIRONMENTAL PROTECTION AUTHORITY BILL...4 TE RŪNANGA STATEMENTS OF POSITION ON THE ENVIRONMENTAL PROTECTION AUTHORITY BILL...5 TREATY OF WAITANGI...6 COMPOSITION & SKILL SET OF BOARD OF EPA...6 MĀORI ADVISORY COMMITTEE...7 EPA FUNCTIONS ON MATTERS OF NATIONAL SIGNIFICANCE...8 APPENDIX ONE EXCERPT FROM THE NGĀI TAHU CLAIMS SETTLEMENT ACT...10 contact person Aaron Rice Edwards I Senior Policy Advisor I Te Rūnanga o Ngāi Tahu aaron.riceedwards@ngaitahu.iwi.nz I Phone I PO Box I Christchurch request to be heard Te Rūnanga o Ngāi Tahu wishes to appear before the Select Committee to speak to this submission. Page 2

3 EXECUTIVE SUMMARY 1. Te Rūnanga o Ngāi Tahu is committed to actively participating in the effective sustainable management of the environment and preserving participatory rights to ensure the best environmental outcomes are achieved. 2. Te Rūnanga o Ngāi Tahu considers that the Environmental Protection Authority Bill (the Bill) will provide for a more streamlined and co ordinated approach to environmental management in New Zealand. However, we would like to see some improvements to the Bill that will better reflect the Crown s obligations to Iwi and Tangata Whenua. 3. Te Rūnanga o Ngāi Tahu presents the following specific recommendations: a. Insert a new clause in Part 1 of the Bill as follows: Treaty of Waitangi All persons exercising powers and functions under this Act shall give effect to the principles of the Treaty of Waitangi (Te Tiriti o Waitangi). b. That the Crown give immediate consideration to arrangements for cogovernance with Iwi on environmental management, and enter into constructive dialogue with Iwi on possible Mana to Mana arrangements that better reflect the Treaty partnership. c. Amend clause 8(3) by inserting the following underlined words: The Minister must appoint at least two members who have knowledge and experience relating to thetreaty of Waitangi, tikanga Māori(Māori customary values and practices) and Iwi environmental management. d. Amend clause 9(2)(d) by inserting the following underlined words: the Treaty of Waitangi, tikanga Māori and Iwi environmental management. e. Amend clause 17 by inserting a new sub clause 17(4) that states: No members of the EPA shall be eligible for appointment to the committee. f. Amend clause 17 by inserting a new sub clause 17(5) that states: Those persons appointed to be members of the committee shall have knowledge and experience relating to the Treaty of Waitangi, tikanga Māori and Iwi environmental management. g. Amend clause 18(2) as follows by inserting the underlined words: The advice and assistance must be given from a Māori perspective, give sufficient recognition of Iwi policy and cultural values, and come within the terms of reference of the committee. h. Amend clause 83(5) by inserting the following underlined words: The EPA must serve a copy of its recommendations on the applicant, the local authority, the relevant Iwi authority and the relevant tangata whenua group. Page 3

4 TE RŪNANGA O NGĀI TAHU 4. This submission is made on behalf of Te Rūnanga o Ngāi Tahu (Te Rūnanga). Te Rūnanga is statutorily recognised as the representative tribal body of Ngāi Tahu Whānui and was established as a body corporate on 24 April under section 6 of the Te Rūnanga o Ngāi Tahu Act 1996 (the Act). Section3 of the Act states: This Act binds the Crown and every person (including any body politic or corporate) whose rights are affected by any provisions of this Act. Section 15(1) of the Act states: Te Rūnanga o Ngāi Tahu shall be recognised for all purposes as the representative of Ngāi Tahu Whānui. 5. Te Rūnanga, by virtue of its statutorily recognised position as the representative tribal body of Ngāi Tahu Whānui, makes this submission on behalf of the Ngāi Tahu tribal collective. 6. Te Rūnanga respectfully requests that the Local Government and Environment Select Committee (the Committee) accord this submission the status and weight due to the tribal collective, Ngāi Tahu Whānui. 7. There are currently over 44,500 members of Ngāi Tahu Whānui whose names are registered on the roll in accordance with section 8 of the Act. TE RUNANGA INTERESTS IN THE ENVIRONMENTAL PROTECTION AUTHORITY BILL 8. Te Rūnanga has two principal interests in the (the Bill) a. Treaty Relationship Te Rūnanga considers that the rights and values of the Treaty of Waitangi are fundamental to the management of the environment and that participation rights are imperative. The Crown is subject to fiduciary and Treaty obligations to honour agreements with Iwi to redress historical breaches of the Treaty of Waitangi, and attached as Appendix One, the Apology from the Ngāi Tahu Claims Settlement Act 1998 provides an insight into the significance of these obligations. b. Sustainable Management The purpose of promoting the sustainable management of natural and physical resources under legislation relevant to the Environmental proposed functions is highly valued by Te Rūnanga, as our relationship with the natural environment is fundamental to our culture and identity. Te Rūnanga actively participates in the sustainable management of the environment and has considerable experience in providing cultural expertise in resource management mechanisms under the Resource Management Act (RMA) and Hazardous Substances & New Organisms Act (HSNO). Page 4

5 TE RŪNANGA STATEMENTS OF POSITION ON THE ENVIRONMENTAL PROTECTION AUTHORITY BILL 9. Te Rūnanga acknowledges that the intent of the Bill is to consolidate and streamline the functions of environmental agencies and to provide increased national direction and co ordination of environmental management, particularly those matters of national significance. However, Te Rūnanga is concerned that insufficient regard will be given to Iwi interests in the environment, particularly in regard to matters of national significance that might be called in by the Minister. 10. Te Rūnanga s positions are that: a. The Bill maintains a status quo wherein Iwi are not directly taken into account in meaningful or robust Mana to Mana /co governance arrangements. We request that the Crown enter into immediate dialogue with Iwi on potential arrangements that more effectively embody the Treaty relationship in particular, arrangements that make better provision for Iwi in co governance roles in environmental management; b. We support the intent of the Bill to consolidate agency functions and to provide for more centralisation of decision making; however this must not occur at the expense of established participatory mechanisms and entitlements, particularly Iwi engagement protocols with local authorities. It will be important that an effective balance is struck between increasing the effectiveness and speed of environmental management decision making, whilst ensuring robust processes are in place for effective consultation with and input by Iwi and other community stakeholders; c. Te Rūnanga considers the participation of Iwi in the decision making processes of the Environmental Protection Authority (EPA) is fundamental and that is critical, in terms of the Crowns Treaty obligations, that the EPA is provided with relevant information on Iwi policy and cultural values; and d. We consider that in order to get timely and sound decisions on proposals of national significance, the establishment of the EPA to administer proposals is just one component of the process. Robust information on proposals and informed decisions makers are also important components in the process. Therefore, the role and skill set of the Māori Advisory Committee will be critical in this repect, as well as the collective skill set and knowledge of the EPA members. 11. Te Rūnanga broadly supports the Bill provided that: a. the EPA is clearly subject to a Treaty relationship as an agent of the Crown; b. further dialogue occurs between the Crown and Iwi on more appropriate and effective Treaty partnership arrangements in respect to environmental management; and c. sufficient recognition of Iwi policy and cultural values is given to proposals that are administered by the EPA. Page 5

6 TREATY OF WAITANGI 12. The Treaty of Waitangi provides the fundamental framework guiding the Crown s engagement with Iwi on matters of environmental management. As an omnibus piece of legislation, the Bill consolidates a range of functions derived from other key environment related legislation. Accordingly, under the Bill, the EPA will assume various powers under the RMA, HSNO and Climate Change Response Act We note that each of these statutes requires the Crown to either give effect to or take into account the principles of the Treaty. Although the Bill provides for a process of Māori input into the EPA board s decision making via the Māori Advisory Committee, this alone will not necessarily fulfill the Crown s Treaty obligations. Although the EPA will be subject to the Treaty clauses of the environmental Acts, in order to avoid any doubt or amibuity, we believe that there should be an unequivocal requirement within this Bill that the Board of the EPA (and others) give effect to the principles of the Treaty. 14. Such Treaty clauses have become common place in New Zealand legislation, particularly those in respect of environmental matters. Given the likelihood that matters considered by the EPA in the future will invariably have implications for Iwi in regard to their Article Two rights and interests, the Bill will be strengthened and more complete with the addition of a similar Treaty clause. 15. Insert a new clause in Part 1 of the Bill as follows: Recommendation Treaty of Waitangi All persons exercising powers and functions under this Act shall give effect to the principles of the Treaty of Waitangi (Te Tiriti o Waitangi). COMPOSITION & SKILL SET OF BOARD OF EPA 16. Clause 8(3) requires that the Minister appoint at least one member to the Board of the EPA who has knowledge and experience relating to the Treaty of Waitangi and tikanga Māori (Māori customary values and practices). 17. Under clause 8(2), the Board might comprise between 6 to 8 members. As with many statutorily appointed bodies, there is a risk that a Māori perspective becomes diluted or difficult to assert with merely one advocate. Accordingly, we believe the Board should comprise at least two members with such knowledge. This would better enable the Board as a collective to undertake more balanced decision making on matters with significant implications for Iwi, and would enhance the capacity of the Board to assimilate advice received from the Maori Advisory Committee. 18. The provision for two members with Treaty and tikanga related knowledge, will also assist the Board in designing, setting and reviewing the Terms of Reference for the Māori Advisory Committee. 19. Whilst we commend the Bill s current requirement under clause 8(3) for the Board to have members with expertise in the Treaty and tikanga Māori, we believe that the EPA s sphere of business will also require specific expertise in Iwi environmental management and cultural values. Such candidates should ideally Page 6

7 have experience working with or for Iwi on a range of cultural, technical or policy related issues under environmental Acts. 20. This additional knowledge requirement will also better ensure that the skill set on the Board is relevant and derived from practical experience working on environmental matters, rather then perhaps merely cultural or jurisprudential knowledge derived from other sectors. Although such knowledge will be helpful to EPA decision making processes, real practical Iwi environmental related knowledge and experience will be more relevant and applicable to those matters that come before the EPA. 21. Similarly, in clause 9(1) which deals with collective qualifications of those appointed to the Board, we commend and support the reiteration requiring collective knowledge and experience in the Treaty and tikanga Māori (clause 9(2)(d)). However, as stated, we believe there is real benefit to the functions of the EPA, to have members with expertise and working experience in Iwi environmental management. Accordingly, we recommend that this further qualification be added to clause 9(2)(d). 22. Amend clause 8(3) as follows: Recommendations The Minister must appoint at least two members who have knowledge and experience relating to thetreaty of Waitangi, tikanga Māori(Māori customary values and practices) and Iwi environmental management. 23. Amend clause 9(2)(d) as follows: the Treaty of Waitangi, tikanga Māori and Iwi environmental management. MĀORI ADVISORY COMMITTEE 24. Clause 17 of the Bill enables the EPA to appoint members of the Māori Advisory Committee (the Committee). In essence, the Committee replicates the Ngā Kaihautu Tikanga Taiao model established under the HSNO and continues a pattern within government agencies of relegating Māori or Iwi viewpoints to a subservient advisory role. 25. We strongly advocate for Mana to Mana models of engagement between the Crown and Iwi to more effectively fulfill the Treaty relationship. We recommend that further consideration be given as to potential models of co governance that better reflect the Treaty partnership and the joint role of the Crown and Iwi in undertaking efffective environmental management. Te Rūnanga sees the value of an advisory panel of experts within the EPA processes, but has a fundamental expectation that immediate and ongoing dialogue with Iwi will occur regarding mechanisms that better manifest the role of Iwi as equal co governance partners in environmental management decisions. The nature and form of possible models of co governance may well form part of the discussions arising out of the upcoming constitutional review. 26. For the sake of clarity, and to enhance transparency in the functions of the Committee, we recommend the addition of a sub clause to clause 17 that states that no member of the Board of the EPA may also be appointed as a member of Page 7

8 the Committee. This will ensure a degree of separation and independence between the EPA and the Committee. 27. As with the EPA member qualifications, we would also recommend that the Bill include a requirement that members appointed to the Committee have relevant expertise and experience working in Iwi environmental management and/or knowledge and experience working with Iwi in the context of any of the environmental Acts. 28. We would also expect that the Committee, in carrying out its functions, will engage directly with relevant Iwi and tangata whenua before formulating its advice to the EPA on a particular matter. We also note that clause 18(2) makes reference to the Māori perspective. Given the diversity and multiplicity of views among Iwi on a myriad of environmental issues, we believe this wording would place an onerous and unrealistic expectation on the Committee. Accordingly, we recommend a small but important change wherein advice and assistance is to be given from a Māori perspective. 29. Furthermore, we recommend that the Committee be requred to give sufficient recognition of Iwi policy and cultural values when formulating its advice for the EPA. Recommendations 30. Amend clause 17 by inserting a new sub clause 17(4) that states that no members of the EPA shall be eligible for appointment to the committee. 31. Amend clause 17 by inserting a new sub clause 17(5) that states that Those persons appointed to be members of the committee shall have knowledge and experience relating to the Treaty of Waitangi, tikanga Māori and Iwi environmental management. 32. Amend clause 18(2) as follows: The advice and assistance must be given from a Māori perspective, give sufficient recognition of Iwi policy and cultural values, and come within the terms of reference of the committee. EPA FUNCTIONS ON MATTERS OF NATIONAL SIGNIFICANCE 33. As stated in Te Rūnanga s 2009 submission on the Resource Management (Simplifying and Streamlining) Amendment Bill, increased Ministerial discretion in relation to matters of national significance should not come at the expense of established participatory mechanisms and entitlements. To do so, would undermine the Crown s fiduciary obligations to Iwi under the Treaty. 34. Clause 82(2) amends section 142(4) of the RMA by requiring the Minister to also have regard to the recommendations of the EPA when making a decision relating to a potential matter of national significance. It is our expecation that the Bill in light of our proposed recommendations will ensure that the EPA recognises Iwi policy and cultural values when coming up with its recommendations to the Minister. Furthermore, we hope that the EPA s recommendations to the Minister on such matters, will reflect the fruits of direct and meaningful engagement by the EPA with Iwi and tangata whenua. Subject to these Page 8

9 expectations, Te Rūnanga supports the amendment brought about by clause 82(2). 35. Clause 83 inserts section 144A into the RMA. Pursuant to the proposed section 144A(5), when making recommendations to the Minister in relation to a call in, the EPA is required to serve a copy of its recommendations on the applicant and the local authority. Given the Crown s obligations to Iwi under the Treaty and the liklihood that many of the matters under consideration will have direct implications on the Treaty rights and interests of Iwi, we recommend that Iwi also be given the opportunity to recieve and consider the recommendations of the EPA on a matters within their repective rohe. 36. Amend clause 83(5) as follows: Recommendations The EPA must serve a copy of its recommendations on the applicant, the local authority, the relevant Iwi authority and the relevant tangata whenua group. Page 9

10 APPENDIX ONE EXCERPT FROM THE NGĀI TAHU CLAIMS SETTLEMENT ACT Part One Apology by the Crown to Ngāi Tahu Section 6 Text in English The text of the apology in English is as follows: 1. The Crown recognises the protracted labours of the Ngāi Tahu ancestors in pursuit of their claims for redress and compensation against the Crown for nearly 150 years, as alluded to in the Ngāi Tahu proverb He mahi kai takata, he mahi kai hoaka ( It is work that consumes people, as greenstone consumes sandstone ). The Ngāi Tahu understanding of the Crown's responsibilities conveyed to Queen Victoria by Matiaha Tiramorehu in a petition in 1857, guided the Ngāi Tahu ancestors Tiramorehu wrote: This was the command thy love laid upon these Governors that the law be made one, that the commandments be made one, that the nation be made one, that the white skin be made just equal with the dark skin, and to lay down the love of thy graciousness to the Māori that they dwell happily and remember the power of thy name. The Crown hereby acknowledges the work of the Ngāi Tahu ancestors and makes this apology to them and to their descendants. 2. The Crown acknowledges that it acted unconscionably and in repeated breach of the principles of the Treaty of Waitangi in its dealings with Ngāi Tahu in the purchases of Ngāi Tahu land. The Crown further acknowledges that in relation to the deeds of purchase it has failed in most material respects to honour its obligations to Ngāi Tahu as its Treaty partner, while it also failed to set aside adequate lands for Ngāi Tahu's use, and to provide adequate economic and social resources for Ngāi Tahu. 3. The Crown acknowledges that, in breach of Article Two of the Treaty, it failed to preserve and protect Ngāi Tahu's use and ownership of such of their land and valued possessions as they wished to retain. 4. The Crown recognises that it has failed to act towards Ngāi Tahu reasonably and with the utmost good faith in a manner consistent with the honour of the Crown. That failure is referred to in the Ngāi Tahu saying Te Hapa o Niu Tireni! ( The unfulfilled promise of New Zealand ). The Crown further recognises that its failure always to act in good faith deprived Ngāi Tahu of the opportunity to develop and kept the tribe for several generations in a state of poverty, a state referred to in the proverb Te mate o te Iwi ( The malaise of the tribe ). 5. The Crown recognises that Ngāi Tahu has been consistently loyal to the Crown, and that the tribe has honoured its obligations and responsibilities under the Treaty of Waitangi and duties as citizens of the nation, especially, but not exclusively, in their active service in all Page 10

11 of the major conflicts up to the present time to which New Zealand has sent troops. The Crown pays tribute to Ngāi Tahu's loyalty and to the contribution made by the tribe to the nation. 6. The Crown expresses its profound regret and apologises unreservedly to all members of Ngai Tāhu Whanui for the suffering and hardship caused to Ngāi Tahu, and for the harmful effects which resulted to the welfare, economy and development of Ngāi Tahu as a tribe. The Crown acknowledges that such suffering, hardship and harmful effects resulted from its failures to honour its obligations to Ngāi Tahu under the deeds of purchase whereby it acquired Ngāi Tahu lands, to set aside adequate lands for the tribe's use, to allow reasonable access to traditional sources of food, to protect Ngāi Tahu's rights to pounamu and such other valued possessions as the tribe wished to retain, or to remedy effectually Ngāi Tahu's grievances. 7. The Crown apologises to Ngāi Tahu for its past failures to acknowledge Ngāi Tahu rangatiratanga and mana over the South Island lands within its boundaries, and, in fulfilment of its Treaty obligations, the Crown recognises Ngāi Tahu as the tangata whenua of, and as holding rangatiratanga within, the Takiwā of Ngāi Tahu Whanui. 8. Accordingly, the Crown seeks on behalf of all New Zealanders to atone for these acknowledged injustices, so far as that is now possible, and, with the historical grievances finally settled as to matters set out in the Deed of Settlement signed on 21 November 1997, to begin the process of healing and to enter a new age of cooperation with Ngāi Tahu. Page 11