About the Author

Avatar photo

Michael Coote

The Smith Reforms

Print Friendly and PDF
Posted on

NZCPR readers must urgently contact their members of Parliament to protest over the racist ambush sprung on New Zealand by the National government in cahoots with the Maori Party under the guidance of Environment Minister Dr Nick Smith.

There should be considerable alarm over the March 14 second reading of the Resource Legislation Amendment Bill (RLAB) and the subsequent media release issued by Dr Smith.

Just when we thought the RLAB could not get any more racist in its bias toward Maori, the government to its discredit springs an ugly surprise.

All New Zealanders should be gravely concerned, unless they are Maori tribes and their corporations expecting to profit.

Provisions for iwi participation arrangements (IPAs), previously criticised in my National Business Review “On the Money” column, have been struck out and another Subpart 2 substituted in Part 5 of the RLAB, with new sections from 58K to 58T.

The deleted Subpart 2 required local authorities to invite “iwi authorities representing tangata whenua” to enter into IPAs within 30 days of triennial local body elections.

IPAs would enable “tangata whenua … through iwi authorities [to] participate in the preparation, change, or review of a policy statement or plan ….”

This was not good enough for the Maori Party, which prevailed on Dr Smith to do a switcheroo on the IPA provisions after public consultation on the bill was over.

As a result, the great majority of New Zealanders have been stabbed in the back by National and the Maori Party.

What appears in the bill instead of IPAs is the brainchild of the Freshwater Iwi Leaders Group (FILG), namely the mana whakahono a rohe (MWR), whereby Maori tribal co-government with local authorities can be initiated by iwi authorities.

The MWR’s roots lie in the FILG’s July/August 2015 presentation which states (p. 24), “Participation and collaboration for iwi must extend to consenting and include:

  • iwi representation on Councils 
  • extending proposed IPAs to consenting 
  • strengthening iwi management plans so that the Resource Management Act (RMA) has to either “give effect to” or “recognise and provide for” in all council decision making.”

The Ministry of the Environment’s February 2016 consultation paper, Next steps for fresh water, echoes and amplifies the FILG’s theme.

The section “Enabling iwi and councils to agree how to work together” states (proposal 3.5, p. 29), “The Government will amend the RMA to establish provisions for a new rohe (region or catchment)-based agreement between iwi and councils for natural resource management – a ‘mana whakahono a rohe’ agreement.”

“The mana whakahono a rohe will:

  • be initiated by iwi through notice to the councils
  • be available to all iwi but will not override or replace existing arrangements for natural resource management in Treaty of Waitangi settlements nor preclude agreement of different arrangements under a Treaty settlement
  • provide for multiple iwi involvement where appropriate and agreed
  • set out how iwi and council(s) will work together in relation to plan-making, consenting, appointment of committees, monitoring and enforcement, bylaws, regulations and other council statutory responsibilities
  • include review and dispute resolution processes.”

Proposal 3.5 is written in the context of the heading, “Participation in freshwater decision-making” under which it is stated, “Hand-in-hand with recognition of their association with water bodies, there needs to be ways for iwi and hapu to participate in decision-making about those water bodies.”

“This decisionmaking occurs through development of regional policy statements, regional plans, catchment plans, and consenting.”

The amended RLAB, which passed its second Parliamentary reading by a vote of 61 to 59, features proposal 3.5 writ large in Subpart 2—Mana Whakahono a Rohe: Iwi participation arrangements.

Subpart 2 is prejudicial to the public good, a coup against local government democracy, economic racism, legalized corruption, and a National government-gifted licence to loot for Maori tribalists.

Its full text is to be found in Appendix 1.

Highlights – if that be the word – of Subpart 2 include the right of iwi authorities to invite local authorities to enter into MWR negotiations, an offer unable to be refused.

These invitations can be made at any time with the exception of the 90 days prior to triennial local government elections.

MWRs once in force cannot be altered or terminated except by mutual agreement, and any other Maori tribal rights in general legislation, Treaty of Waitangi settlements, or IPAs apply in addition to MWR rights.

The wording of Subpart 2 regarding negotiation of MWRs is written in such a way as to favour Maori interests and sets the entire community, as represented by the local authority, on no better footing than the Maori tribal minority, as represented by the iwi authority or even hapu, thus destroying the principles of majoritarian democracy and the supremacy of publicly elected officials in New Zealand’s local government.

More than one iwi authority or hapu, and more than one local authority, can together enter into the same MWR, but different iwi authorities can extend MWR invitations to the same local authority at different times, which could lead to different MWRs.

To give a concrete example, Auckland Council recognises 19 iwi authorities within its territory.

The way Subpart 2 is worded, these 19 iwi authorities could separately or jointly, serially or simultaneously, invite Auckland Council into MWR negotiations, with the end result anywhere between one and 19 MWRs.

This situation could reopen the infamous Maori cultural impact assessment rort attempted in the former Proposed Auckland Unitary Plan, which many believed finally put to bed with recent High Court defeat of the Independent Maori Statutory Board’s bid to reinstate thousands of sites of value for mana whenua finally rejected from the completed Unitary Plan.

It cannot be conceivable that MWRs would make the RMA any more efficient to administer in Auckland.

Yet Dr Smith asserts in his media release that RLAB will result in, “reducing the time taken to get consents … National planning standards to reduce complexity and cost,” and, “Streamlined planning process to improve responsiveness.”

Pull the other one, Dr Smith. 

Consents from local authorities hogtied by MWRs directly involving Maori tribes in administering the RMA will require more time, cost and complexity, and provide less streamlining and responsiveness.

Dr Smith’s media release misrepresents the racist gerrymander he has jacked up with the Maori Party.

“This is the second phase of the Government’s resource management reforms, and the dozen significant provisions in the Bill include … Improved Maori participation arrangements,” he said.

Note that Dr Smith did not dare call IPAs by their new “improved” name of MWRs, but then that would give the Maori supremacist game away and he has to talk New Zealanders into believing that the bill is all good news.

“The Maori Party has supported the Bill to this stage and we are continuing to work with them to ensure detailed changes as a result of the select committee process are consistent with their agreement with the Government,” Dr Smith went on.

“I will be meeting with the Maori Party co-leaders on ensuring we have got the detail right.”

There you have it: the Environment Minister of the National government dwindled to taking dictation from Te Ururoa Flavell and Marama Fox.

Outside of Maori tribal corporates, the business environment and more generally society in New Zealand can only deteriorate when the RMA is hijacked in this race-based way.

Ngai Tahu is in no doubt what MWR means for its corporate plans.

In its March 2016 submission on the bill, section 7 “Iwi Specific Amendments” states (pp. 10-11), “The way the legislation is written, IPAs are limited in scope, primarily focussed on processes for iwi participation in planning.”

“Ngai Tahu seeks to build on this basis, modelling other agreements such as mana whakahono a rohe (as proposed in Next Steps for Freshwater), to incorporate additional elements of importance to the relationship between iwi and local authorities.”

“In particular, the handling of resource consent applications, notification decisions, monitoring and enforcement, and content elements relevant to Ngai Tahu rights, interests and values would be useful additions to an IPA.”

Useful indeed if as a corporate you gained monopolistic stranglehold over local government throughout the South Island through racially-privileged control of RMA processes and procedures, not to mention the commercial advantages that would bring versus business competitors. 

If the RLAB is enacted, Ngai Tahu will likely be quick out of the blocks to issue MWR invitations to every local authority in the South Island where its claims tribal authority, with a particular emphasis on controlling fresh water.

Dr Smith hails from the South Island and seemingly intends that his lasting political legacy to fellow Nelsonians and other Mainlanders is that they and their subsequent generations will be forever sold down the river to serve Ngai Tahu’s greed.

The substituted Subpart 2 of the RLAB is apartheid redux.

National must abdicate its claim to being the political party of business, unless it means Maori business, and disown its once cherished values of equal citizenship and equal opportunity, individual freedom and choice, and competitive enterprise and reward for achievement as incompatible with its RMA “Smith reforms”.

National government MPs who do not support racism in New Zealand should abstain from voting or cross the floor to ensure that the RLAB is defeated at its third reading.

Those National MPs who continue to vote for the RLAB are at best mere Parliamentary careerists, and at worst wilful facilitators of racism, in thrall to anti-democratic Maori tribalists who want to roll back the Crown and the Treaty of Waitangi as far as possible in order to restore pre-Treaty Maori tribal hegemony in New Zealand.

In pandering to Maori racism, National deserves to lose the next general election, with the excellent result that Dr Smith will never again hold a ministerial warrant.

Appendix 1:

Subpart 2—Mana Whakahono a Rohe: Iwi participation arrangements

58K Definitions

In this subpart and Schedule 1,—

area of interest means the area that the iwi and hapu represented by an iwi authority identify as their traditional rohe

initiating iwi authority has the meaning given in section 58N(1)

iwi participation legislation means legislation (other than this Act), including any legislation listed in Schedule 3 of the Treaty of Waitangi Act 1975, that provides a role for iwi or hapu in processes under this Act

Mana Whakahono a Rohe means an iwi participation arrangement entered into under this subpart

participating authorities has the meaning given in section 58N(5)

participating iwi authorities means the iwi authorities that—

(a)have agreed to participate in a Mana Whakahono a Rohe; and

(b)have agreed the order in which negotiations are to be conducted

relevant iwi authority means an iwi authority whose area of interest overlaps with, or is adjacent to, the area of interest of an initiating iwi authority

relevant local authority means a district or regional council whose area of interest overlaps with, or is adjacent to, the area of interest represented by the initiating iwi authority.

Purpose and guiding principles

58L Purpose of Mana Whakahono a Rohe

The purpose of a Mana Whakahono a Rohe is—

(a)to provide a mechanism for iwi authorities and local authorities to discuss, agree, and record ways in which tangata whenua may, through their iwi authorities, participate in resource management and decision-making processes under this Act; and

(b)to assist local authorities to comply with their statutory duties under this Act, including through the implementation of sections 6(e), 7(a), and 8.

58M Guiding principles

In initiating, developing, and implementing a Mana Whakahono a Rohe, the participating authorities must use their best endeavours—

(a)to achieve the purpose of the Mana Whakahono a Rohe in an enduring manner:

(b)to enhance the opportunities for collaboration amongst the participating authorities, including by promoting—

(i)the use of integrated processes:

(ii)co-ordination of the resources required to undertake the obligations and responsibilities of the parties to the Mana Whakahono a Rohe:

(c)in determining whether to proceed to negotiate a joint or multi-party Mana Whakahono a Rohe, to achieve the most effective and efficient means of meeting the statutory obligations of the participating authorities:

(d)to work together in good faith and in a spirit of co-operation:

(e)to communicate with each other in an open, transparent, and honest manner:

(f)to recognise and acknowledge the benefit of working together by sharing their respective vision and expertise:

(g)to commit to meeting statutory time frames and minimise delays and costs associated with the statutory processes:

(h)to recognise that a Mana Whakahono a Rohe under this subpart does not limit the requirements of any relevant iwi participation legislation or the agreements associated with that legislation.

Initiating Mana Whakahono a Rohe

58N Initiation of Mana Whakahono a Rohe

Invitation from 1 or more iwi authorities

(1)At any time other than in the period that is 90 days before the date of a triennial election under the Local Electoral Act 2001, 1 or more iwi authorities representing tangata whenua (the initiating iwi authorities) may invite 1 or more relevant local authorities in writing to enter into a Mana Whakahono a Rohe with the 1 or more iwi authorities.

Obligations of local authorities that receive invitation

(2)As soon as is reasonably practicable after receiving an invitation under subsection (1), the local authorities—

(a)may advise any relevant iwi authorities and relevant local authorities that the invitation has been received; and

(b)must convene a hui or meeting of the initiating iwi authority and any iwi authority or local authority identified under paragraph (a) (the parties) that wishes to participate to discuss how they will work together to develop a Mana Whakahono a Rohe under this subpart.

(3)The hui or meeting required by subsection (2)(b) must be held not later than 60 working days after the invitation sent under subsection (1) is received, unless the parties agree otherwise.

(4)The purpose of the hui or meeting is to provide an opportunity for the iwi authorities and local authorities concerned to discuss and agree on—

(a)the process for negotiation of 1 or more Mana Whakahono a Rohe; and

(b)which parties are to be involved in the negotiations; and

(c)the times by which specified stages of the negotiations must be concluded.

(5)The iwi authorities and local authorities that are able to agree at the hui or meeting how they will develop a Mana Whakahono a Rohe (the participating authorities) must proceed to negotiate the terms of the Mana Whakahono a Rohe in accordance with that agreement and this subpart.

(6)If 1 or more local authorities in an area are negotiating a Mana Whakahono a Rohe and a further invitation is received under subsection (1), the participating iwi authorities and relevant local authorities may agree on the order in which they negotiate the Mana Whakahono a Rohe.

Other matters relevant to Mana Whakahono a Rohe

(7)If an iwi authority and a local authority have at any time entered into a relationship agreement, to the extent that the agreement relates to resource management matters, the parties to that agreement may, by written agreement, treat that agreement as if it were a Mana Whakahono a Rohe entered into under this subpart.

(8)The participating authorities must take account of the extent to which resource management matters are included in any iwi participation legislation and seek to minimise duplication between the functions of the participating authorities under that legislation and those arising under the Mana Whakahono a Rohe.

(9)Nothing in this subpart prevents a local authority from commencing, continuing, or completing any process under the Act while waiting for a response from, or negotiating a Mana Whakahono a Rohe with, 1 or more iwi authorities.

58O Other opportunities to initiate Mana Whakahono a Rohe

Later initiation by iwi authority

(1)An iwi authority that, at the time of receiving an invitation to a meeting or hui under section 58N(2)(b), does not wish to participate in negotiating a Mana Whakahono a Rohe, or withdraws from negotiations before a Mana Whakahono a Rohe is agreed, may participate in, or initiate, a Mana Whakahono a Rohe at any later time (other than within the period that is 90 days before a triennial election under the Local Electoral Act 2001).

(2)If a Mana Whakahono a Rohe exists and another iwi authority in the same area as the initiating iwi wishes to initiate a Mana Whakahono a Rohe under section 58N(1), that iwi authority must first consider joining the existing Mana Whakahono a Rohe.

(3)The provisions of this subpart apply to any initiation under subsection (1).

Initiation by local authority

(4)A local authority may initiate a Mana Whakahono a Rohe with an iwi authority or with hapu.

(5)The local authority and iwi authority or hapu concerned must agree on—

(a)the process to be adopted; and

(b)the time period within which the negotiations are to be concluded; and

(c)how the Mana Whakahono a Rohe is to be implemented after negotiations are concluded.

(6)If 1 or more hapu are invited to enter a Mana Whakahono a Rohe under subsection (4), the provisions of this subpart apply as if the references to an iwi authority were references to 1 or more hapu, to the extent that the provisions relate to the contents of a Mana Whakahono a Rohe (see sections 58L, 58M, 58Q, 58S, and 58T).

58P Time frame for concluding Mana Whakahono a Rohe

If an invitation is initiated under section 58N(1), the participating authorities must conclude a Mana Whakahono a Rohe within—

(a)18 months after the date on which the invitation is received; or

(b)any other period agreed by all the participating authorities.


58Q Contents of Mana Whakahono a Rohe

(1)A Mana Whakahono a Rohe must—

(a)be recorded in writing; and

(b)identify the participating authorities; and

(c)record the agreement of the participating authorities about—

(i)how an iwi authority may participate in the preparation or change of a policy statement or plan, including the use of any of the pre-notification, collaborative, or streamlined planning processes under Schedule 1; and

(ii)how the participating authorities will undertake consultation requirements, including the requirements of section 34A(1A) and clause 4A of Schedule 1; and

(iii)how the participating authorities will work together to develop and agree on methods for monitoring under the Act; and

(iv)how the participating authorities will give effect to the requirements of any relevant iwi participation legislation, or of any agreements associated with, or entered into under, that legislation; and

(v)a process for identifying and managing conflicts of interest; and

(vi)the process that the parties will use for resolving disputes about the implementation of the Mana Whakahono a Rohe, including the matters described in subsection (2).

(2)The dispute resolution process recorded under subsection (1)(c)(vi) must—

(a)set out the extent to which the outcome of a dispute resolution process may constitute an agreement—

(i)to alter or terminate a Mana Whakahono a Rohe (see subsection (5)):

(ii)to conclude a Mana Whakahono a Rohe at a time other than that specified in section 58P:

(iii)to complete a Mana Whakahono a Rohe at a later date (see section 58S(2)):

(iv)jointly to review the effectiveness of a Mana Whakahono a Rohe at a later date (see section 58S(3)):

(v)to undertake any additional reporting (see section 58S(5)); and

(b)require each of the participating authorities to bear its own costs for any dispute resolution process undertaken.

(3)The dispute resolution process must not require a local authority to suspend commencing, continuing, or completing any process under the Act while the dispute resolution process is in contemplation or is in progress.

(4)A Mana Whakahono a Rohe may also specify—

(a)how a local authority is to consult or notify an iwi authority on resource consent matters, where the Act provides for consultation or notification:

(b)the circumstances in which an iwi authority may be given limited notification as an affected party:

(c)any arrangement relating to other functions, duties, or powers under this Act:

(d)if there are 2 or more iwi authorities participating in a Mana Whakahono a Rohe, how those iwi authorities will work collectively together to participate with local authorities:

(e)whether a participating iwi authority has delegated to a person or group of persons (including hapu) a role to participate in particular processes under this Act.

(5)Unless the participating authorities agree,—

(a)the contents of a Mana Whakahono a Rohe must not be altered; and

(b)a Mana Whakahono a Rohe must not be terminated.

(6)If 2 or more iwi authorities collectively have entered into a Mana Whakahono a Rohe with a local authority, any 1 of the iwi authorities, if seeking to amend the contents of the Mana Whakahono a Rohe, must negotiate with the local authority for that purpose rather than seek to enter into a new Mana Whakahono a Rohe.

58R Resolution of disputes that arise in course of negotiating Mana Whakahono a Rohe

(1)This section applies if a dispute arises among participating authorities in the course of negotiating a Mana Whakahono a Rohe.

(2)The participating authorities—

(a)may by agreement undertake a binding process of dispute resolution; but

(b)if they do not reach agreement on a binding process, must undertake a non-binding process of dispute resolution.

(3)Whether the participating authorities choose a binding process or a non-binding process, each authority must—

(a)jointly appoint an arbitrator or a mediator; and

(b)meet its own costs of the process.

(4)If the dispute remains unresolved after a non-binding process has been undertaken, the participating authorities may individually or jointly seek the assistance of the Minister.

(5)The Minister, with a view to assisting the participating authorities to resolve the dispute and conclude a Mana Whakahono a Rohe, may—

(a)appoint, and meet the costs of, a Crown facilitator:

(b)direct the participating authorities to use a particular alternative dispute resolution process for that purpose.

58S Review and monitoring

(1)A local authority that enters into a Mana Whakahono a Rohe under this subpart must review its policies and processes to ensure that they are consistent with the Mana Whakahono a Rohe.

(2)The review required by subsection (1) must be completed not later than 6 months after the date of the Mana Whakahono a Rohe, unless a later date is agreed by the participating authorities.

(3)Every sixth anniversary after the date of a Mana Whakahono a Rohe, or at any other time by agreement, the participating authorities must jointly review the effectiveness of the Mana Whakahono a Rohe, having regard to the purpose of a Mana Whakahono a Rohe stated in section 58L and the guiding principles set out in section 58M.

(4)The obligations under this section are in addition to the obligations of a local authority under—

(a)section 27 (the provision of information to the Minister):

(b)section 35 (monitoring and record keeping).

(5)Any additional reporting may be undertaken by agreement of the participating authorities.

58T Relationship with iwi participation legislation

A Mana Whakahono a Rohe does not limit any relevant provision of any iwi participation legislation or any agreement under that legislation.