Iwi participation under the Resource Management Act 1991: a framework for a politics of difference?

Abstract

The Treaty of Waitangi promised a partnership between iwi and the Crown in 1840. In practice, under the Resource Management Act 1991 (RMA), iwi tends to be restricted to consultation rather than participation based on the Treaty partnership. This report assessed iwi participation as expressing a politics of difference where iwi and councils are recognised as Treaty partners in the decision making under the RMA.

Derived from literature on the politics of difference, the following issues provided criteria for a theoretical framework: differences as structural, differences within categories, differences as relational and contextual. Treaty partnership conceived as a framework for a politics of difference (Turner, 1995) placed the theoretical framework within the context of the Treaty of Waitangi.

Outlining the context of iwi participation under the RMA highlighted how recent case law indicated a shift to a stronger obligation of councils to adopt a more holistic approach to consultation that more closely reflects that of a partnership. The case study applied the criteria of the theoretical framework to assess iwi participation under the RMA. Structural constraints were identified as mainly based on the legislative constraints of the RMA such as lack of guidelines in the Act for iwi participation. The report also argued that differences within Ngai Tahu were not adequately included in the participation processes. The relational and contextual understanding of differences by councils was inadequate given the lack of appropriate consultation. Overall, the case study revealed that the councils efforts to extend a Treaty partnership under the RMA to the participation processes was inadequate. However, a framework for a politics of difference was evident in the development of good practice by councils to address some of the constraints.

Recommendations mainly addressed these key issues: the development of specific iwi participation guidelines under the RMA; the resourcing of iwi participation; the education of council staff on the Treaty and the need for councils and iwi to develop clear processes of who is to be consulted and when.