PO Box 10388

The Terrace 6143

Wellington
New Zealand

Memorandum
To:

Lee Short, Democracy Action

From:

Stephen Franks, Pam McMillan, Franks Ogilvie

Date:

18 November 2014

Subject:

Legal Advice on the Mana Whenua provisions of Proposed Auckland

Unitary Plan

Summary
1.

2.

We have been asked for advice on the legality of the following aspects of the Mana
Whenua provisions of the Proposed Auckland Unitary Plan (PAUP):
(a)

The use of the precautionary approach for the Sites and Places of Value to
Mana Whenua Overlay;

(b)

The purple circles on the Sites and Places of Value to Mana Whenua Overlay
Map;

(c)

The mandatory requirement for cultural impact assessments (CIAs);

(d)

Their immediate effect;

(e)

Their vagueness and uncertainty;

(f)

The process leading up to the notification of the PAUP; and

(g)

The application of concepts of partnership and co-management.

A summary of our view on each of these aspects is:

(a)

Precautionary approach: According to the New Zealand Coastal Policy

Statement and case law the precautionary approach should only be used
when there is a possibility of significant adverse effect from a proposed
activity. Even for sites with known characteristics the threat through activities
such as excavation in neighbouring properties is unlikely to meet that
threshold in most cases. Where the sites have unknown characteristics it is
likely to be because they do not have obvious features or have not been
evaluated. Existing law covers the discovery of buried archaeological

Commercial & Public Law Limited trading as Franks Ogilvie, Level 5, 90 The Terrace, Wellington 6011
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evidence. On a site by site basis it would likely be hard for the Council to
defend an assumption of significant adverse effects in many locations from
activity on adjacent land.

(b)

Purple circles: The Council has admitted that the size of the purple circles on
the Sites and Places of Value to Mana Whenua map was a mistake.1 The map
is part of the PAUP and therefore the circles represent the sites. Usually a
significant mistake like that would be corrected by a local authority on
application to the Environment Court under s 292 of the RMA.

(c)

The Councils failure to seek immediate correction and to institute interim

arbitrary measures is reprehensible, and could justify court application for
compensation if loss is established.

(d)

CIAs: Requiring applicants to consult with iwi as part of the resource consent
process in order to obtain a CIA is contrary to s 36A of the RMA, case law, and
the practice of local authorities. It improperly applies procedures which are
proper for plan development, to resource consent or plan administration
processes.

(e)

Immediate effect: There is doubt whether the Mana Whenua provisions

should have been given immediate effect. Under s 75(4) of the RMA rules
cannot be contrary to a regional policy statement (RPS) under certain
circumstances. In addition it is unclear if sites (including large buffer zones)
that have not been evaluated to determine if they are of value to Mana
Whenua would meet the definition of historic heritage in the RMA and
therefore require protection.

(f)

The Councils apparent indifference to the costs of this unnecessary

immediate application of the provisions invites consideration of the kind of
proceedings mentioned above in relation to the wrong sizing of the purple
circles.

(g)

Uncertainty: Some of the Mana Whenua provisions are so vague they could
be found by a court to be void for uncertainty. The Council has been wilfully
(knowingly) careless in this respect.

(h)

Flawed process: If councillors have no recollection of considering the CIA

provisions, taking account of correspondence and minuted absence of
positive records, it is unlikely the correct procedure was followed prior to
notification. The Harrison Grierson/NZIER audit of the section 32 evaluation
may indicate a reprehensibly casual approach to the purpose of legal
requirements.

(i)

Partnership / co-management: The RMA requires local authorities to take in

account the principles of the Treaty of Waitangi but this does not make the

Letter from Roger Blakeley to Lee Short, 23 October 2014, A12.

local authority a treaty partner. They have only treaty obligations that are
explicitly imposed by statute. The PAUP provisions and officer answers to
questions disclose material misconceptions about the proper interpretation of
RMA references to relevant matters.
3.

This opinion is based on the information which is publicly available or which the
Council has given us and our own research. We enclose the advice given to
Democracy Action by Dr Kenneth Palmer on 29 September 2014 and concur with it.
The purpose of the opinion is to advise on the legality of the Mana Whenua
provisions of the PAUP. Advice on the prospects of success in litigation, in relation
to costs would be separate.

4.

Relevant to all of these issues are the fiduciary duties of the Council to Auckland
property owners to act in good faith.2 It the issues were tested in court this would
be taken into account.
Precautionary approach

5.

The Council has justified the sites and places of value to Mana Whenua overlay on
the need to take a precautionary approach.3 The Statement of Evidence of Mr
Smitheram on behalf of Auckland Council states: 4
There are 3600 Sites and Places of Value which are identified on an overlay by purple
circles in accordance with the precautionary approach to these sites and places. Available
archaeological information confirms the presence and location of Mana Whenua cultural
heritage for Sites and Places of Value, but their significance has not been assessed in
detail.

A precautionary approach recognises circumstances where there is considerable risk in

not acting. In the case of Mana Whenua cultural heritage where there is uncertainty or a
lack of information, precaution should be taken in decision-making to avoid further loss
and deterioration of a finite and irreplaceable resource.

6.

We note the assertions, without evidence, that sites have already suffered loss
and that they represent resources that are finite and irreplaceable. This appears
to misapply language which may be pertinent to physical or tangible resources, as if
it has equivalent meanings in relation to cultural heritage assertion, without
anchoring or connecting them to the sites.

7.

Chapter B5.4 states:

The approach to Mana Whenua cultural heritage addresses the multiple levels of Mana
Whenua cultural heritage, incorporates the provisions of Policy 2 of the NZCPS and applies
a precautionary approach where information is lacking but protection is warranted.

Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA).

Letter from Roger Blakeley to Lee Short, 23 October 2014, A13.
4
Statement of Evidence of Maximus Graham Smitheram on behalf of Auckland Council (21 October 2014)
paragraph 1.11
3

8.

The term precautionary approach stems from Principle 15 of the 1992 Rio
Declaration5:
In order to protect the environment, the precautionary approach shall be widely applied
by States according to their capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason for postponing cost
effective measures to prevent environmental degradation.

9.

We observe that it stipulates for careful assessment, not potential freezing of

decisions. The PAUP provisions do not contemplate special care, or a higher
standard of reassurance pending the gaining of scientific certainty. They do not
require that uncertainty be reduced by research. Instead they require indefinitely
subjective assessments by parties with conflicting interests.

10.

Since then courts have developed the meaning. The Environment Court in NZ Forest
Research Institute Ltd v Bay of Plenty Regional Council summarised it as follows: 6
The short point is that what is required, if there is an unknown degree of risk, but possible
significant adverse effects if the risk comes to pass, is that those undertaking whatever it
is should be very careful in assessing what activities might be regarded as appropriate in
that place.

11.

In that case the Bay of Plenty Regional Councils proposed regional policy statement
included a requirement to use a precautionary approach for genetically modified
organisms. The Court directed a replacement provision which would de-couple the
GMO issue from the precautionary approach and defuse the suggestion of policy by
stealth.7

12.

The Court noted that the precautionary approach is implicit in the RMA via the
definition of the term effect in s 3(f). The definition is [our emphasis]:
3 Meaning of effect
In this Act, unless the context otherwise requires, the term effect includes
(a) Any positive or adverse effect; and
(b) Any temporary or permanent effect; and
(c) Any past, present, or future effect; and
(d) Any cumulative effect which arises over time or in combination with other effects
regardless of the scale, intensity, duration, or frequency of the effect, and also includes
(e) Any potential effect of high probability; and
(f) Any potential effect of low probability which has a high potential impact.

13.

The PAUP shows no sign of reliance by the Council on evidence related to sites of
value that goes to scale, time of effect, intensity, duration, frequency, probability,
or impact. Nor does it stipulate for anything of that kind in cultural impact
assessments.

The report of the United Nations Conference On Environment and Development 1992
NZ Forest Research Institute Ltd v Bay of Plenty Regional Council (EC) [2013] NZEnvC 298 para 17.
7
Ibid, para 29.
6

14.

B5.4 refers to Policy 2 of the NZCPS which is the NZ Coastal Policy Statement. Policy
2 is: [our emphasis]
Policy 2: The Treaty of Waitangi, tangata whenua and Mori
In taking account of the principles of the Treaty of Waitangi (Te Tiriti o Waitangi),
and kaitiakitanga, in relation to the coastal environment:
a.
b.

c.

d.

e.

f.

g.

recognise that tangata whenua have traditional and continuing cultural relationships with areas of the
coastal environment, including places where they have lived and fished for generations;
involve iwi authorities or hap on behalf of tangata whenua in the preparation of regional policy
statements, and plans, by undertaking effective consultation with tangata whenua; with such
consultation to be early, meaningful, and as far as practicable in accordance with tikanga Mori;
with the consent of tangata whenua and as far as practicable in accordance with tikanga Mori,
incorporate mtauranga Mori1 in regional policy statements, in plans, and in the consideration of
applications for resource consents, notices of requirement for designation and private plan changes;
provide opportunities in appropriate circumstances for Mori involvement in decision making,
for example when a consent application or notice of requirement is dealing with cultural
localities or issues of cultural significance, and Mori experts, including pkenga2, may have
knowledge not otherwise available;
take into account any relevant iwi resource management plan and any other relevant planning
document recognised by the appropriate iwi authority or hap and lodged with the council, to the
extent that its content has a bearing on resource management issues in the region or district; and
i.
where appropriate incorporate references to, or material from, iwi resource management
plans in regional policy statements and in plans; and
ii.
consider providing practical assistance to iwi or hap who have indicated a wish to develop
iwi resource management plans;
provide for opportunities for tangata whenua to exercise kaitiakitanga over waters, forests, lands, and
fisheries in the coastal environment through such measures as:
i.
bringing cultural understanding to monitoring of natural resources;
ii.
providing appropriate methods for the management, maintenance and protection of the
taonga of tangata whenua;
iii.
having regard to regulations, rules or bylaws relating to ensuring sustainability of fisheries
resources such as taipure, mahinga mtaitai or other non commercial Mori customary
fishing;
in consultation and collaboration with tangata whenua, working as far as practicable in accordance
with tikanga Mori, and recognising that tangata whenua have the right to choose not to identify
places or values of historic, cultural or spiritual significance or special value:
i.
recognise the importance of Mori cultural and heritage values through such methods as
historic heritage, landscape and cultural impact assessments; and
ii.
provide for the identification, assessment, protection and management of areas or sites of
significance or special value to Mori, including by historic analysis and archaeological
survey and the development of methods such as alert layers and predictive methodologies
for identifying areas of high potential for undiscovered Mori heritage, for example coastal
p or fishing villages.

15.

Regional policy statements must give effect to the NZCPS under s 62(3) of the RMA.
We emphasized words above which appear relevant to the question of whether the
Policy contemplates or requires iwi involvement in the decision-making on the plan,
or goes further and justifies provisions that would involve iwi in discussions on the
application of the Plan. Policy 2 has phrases such as in appropriate circumstances
and as far as practicable. This is in contrast to the Mana Whenua provisions in
the PAUP which include policies which are absolute and universal (e.g. Policy 3 in
chapter E5.2 Sites and Places of Value to Mana Whenua) and with no need
determination of justification on a case by case or site by site basis.

16.

Nevertheless, in our opinion, paragraphs (c) and (d) of Policy 2 do contemplate

Maori involvement in decision making that goes beyond assistance in making sure

that Plans are sensitive to, and recognise or respect Maori cultural sensitivities. It
seems however that the NZCPS is designed to require the elucidation of
matauranga Maori or involve Maori specifically only when they have relevant
knowledge not otherwise available.
17.

Yet the express reference to a right not to identify places or values seems
necessarily to imply a form of right without exploration. Taking all this into account
it seems feasible to achieve the objectives of paragraphs (c), (d) and (g) and (i)
without a blanket stipulation for case by case cultural impact assessments. For
example statements pertaining to sites could describe the kind of activities or uses
that would have cultural or spiritual significance, and how adverse effects might be
integrated, so that property owners and buyers would know it in advance. Such
statements would satisfy the NZCPS and the statutory encouragement in ways less
constitutionally contentious than the PAUP requirements for CIAs.

18.

Policy 3 of the NZCPS is on the meaning of precautionary approach and states: [our
emphasis]
Policy 3: Precautionary approach
1.
2.

19.

Adopt a precautionary approach towards proposed activities whose effects on the coastal
environment are uncertain, unknown, or little understood, but potentially significantly adverse.
In particular, adopt a precautionary approach to use and management of coastal resources potentially
vulnerable to effects from climate change, so that:
a. avoidable social and economic loss and harm to communities does not occur;
b. natural adjustments for coastal processes, natural defences, ecosystems, habitat and species
are allowed to occur; and
c. the natural character, public access, amenity and other values of the coastal environment
meet the needs of future generations.

The words potentially significantly adverse are similar to the words used in the NZ
Forest Research Institute Ltd v Bay of Plenty Regional Council decision. The guidance
note8 to the Policy 3 of the Coastal Policy Statement says: [our emphasis]
it will be a matter for local authorities to decide on a case-by-case basis whether the
activity should be avoided until sufficient study has been done into its likely effects, or
whether an activity is allowed, but subject to complex and detailed conditions and a
programme of specified testing and monitoring (as in adaptive management).

20.

In summary a precautionary approach should only be used:

(a)

on a case by case basis rather than as part of a blanket approach;

(b)

Where the likely effects of activities are unavoidably unknown;

(c)

Where there are possible significant adverse effects if the risk comes to pass;
and

Department of Conservation, NZCPS 2010 Guidance note Policy 3: Precautionary approach para 107
http://www.doc.govt.nz/Documents/conservation/marine-and-coastal/coastal-management/guidance/policy3.pdf

(d)

Where it is interim, until definitive study has delineated the risks and
characteristics.

21.

The relevant PAUP provisions are apparently permanent, with no indication that
CIAs will not be required once sites are properly known.

22.

Mr Smitherans claim that there is considerable risk in not acting is not supported
by the Councils own admission that in many cases the impact from earthworks to
the site is likely to be minimal.9 There is evidence in the Councils Cultural Heritage
Inventory (CHI) that some of the sites no longer exist. The Council could have
checked the CHI for each site, visited the sites, and consulted with Mana Whenua
before notification to determine:
(a)

The current state of the site (e.g. whether it still exists, the exact location and
description, the fragility of each site) ;

(b)

Whether the heritage characteristics of the site meant that the specific
regime for heritage was a better protection, or already provided for adequate
protection;

(c)

If the site was of value to Mana Whenua in accordance with a evidence which
would be acceptable to the Environment Court;

(d)

If the size of the buffer zone (i.e. the 200m wide purple circle plus the 50m
extra) was necessary to protect each particular site;

(e)

If the buffer zone comprised of historic heritage;

(f)

The type of harm that could be done to the site by earthworks on properties
within the buffer zone; and

(g)

The likelihood of that harm being significantly adverse.

23.

More obviously it could have stipulated for the creation of a register or database of
prior assessments for each site that would enable people in the buffer zone to
understand what activities or uses might affect, or be affected by the cultural or
spiritual attributes of the sites.

24.

In other words, we do not think a Court would agree the precautionary approach
was necessary when the Council could have taking these, or similar, steps but chose
not to. And even if it did, the proposed permanent powers to interfere with uses
are remote from the purpose of precautionary protection.

25.

Based on the NZ Forest Research Institute Ltd v Bay of Plenty Regional Council
decision where the Environment Court removed any express requirement to use
the precautionary approach with GMOs, it is unlikely a court would find there is a
need to apply a precautionary approach to activities, such as digging a new garden

99

Letter from Roger Blakeley to Lee Short, 23 October 2014, A24.

on a property which is within 50 metres of the already excessive purple circle

surrounding a small shell midden which may not even exist.
26.

It should be noted however that in the recent case of Te Tumu Landowners Group v
Tauranga City Council10 the Environment Court appeared to uphold a more
precautionary approach with regards to overlays. The Court noted that because the
overlays were an interim step and that the areas would be subject to further
clarification or alteration as further studies are done for the purposes of
development11, the area determined on the overlay was a reasonably appropriate
representation.

27.

The Te Tumu case can be distinguished on the basis that it dealt with a specific site
where there was strong evidence that the site was significant to Maori. In these
circumstances the court gave the matter careful consideration and favoured a
delineation of the area that was conservative and justified with historical evidence.

28.

Te Tumu should not be interpreted generally as legitimising the precautionary

approach where there is alleged sensitivity but limited evidence. In Heybridge
Developments Ltd v Bay of Plenty Regional Council12 it was held that the existence
of the fact is not established by an honest belief and that it was not for the
landowner to disprove the belief. The decision of the Court, unable to determine
with any certainty the possible burial site of an ancestral chief Tutereinga, was to
allow the subdivision to proceed with suitable conditions.

29.

Te Tumu is authority for following the precautionary approach where there is good
evidence that the site is significant but there is uncertainty around the details but
that is not the case for many PAUP sites They have been designated as of value to
Mana Whenua when they may in fact have little to no cultural significance. The
affected purple circle area around these sites on the overlay is arbitrary with
respect to each site. It should not be the landowners responsibility to disprove that
their property contains anything of value or significance or their property use might
affect a nearby site that might have significance.

30.

The Councils section 32 report also invokes the precautionary approach to justify
the Mana Whenua provisions. The use of s32 to justify a blanket approach has been
cautioned by the Court of Appeal in Coromandel Watchdog of Hauraki Inc v Ministry
of Economic Development13. The Court of Appeal held that a blanket ban on mining
was not justified under a precautionary approach flag in s 32 where the facts of the
risk were available or could be determined.

31.

The significance or value of most of the designated sites to Mana Whenua is, or can
become, a matter of historical and archaeological record. The attributes of these
sites are as capable of being determined now as they ever will be. The purple circles

10

Te Tumu Landowners Group v Tauranga City Council [2014] NZEnvC 38, [2014] NZRMA 317.
Ibid, Te Tuma, [87].
12
Heybridge Developments Ltd v Bay of Plenty Regional Council [2013] NZEnvC 269, [2014] NZRMA 164
13
Coromandel Watchdog of Hauraki Inc v Ministry of Economic Development [2007] NZCA 473, [2008] 1
NZLR 562 at [40]
11

delineate areas for permanent iwi intervention rights. Given that purpose, which is
not precautionary in situations of uncertainty, we think it is likely a court would
support a very restrictive approach to the coverage of the circles. The purpose is to
effect a ban on property owners doing certain activities on their land without first
obtaining a CIA and resource consent.
Mistake made in purple circles
32.

The Council acknowledges the size of the purple circles on the Overlay map are a
mistake14 (they should have been 100m wide in diameter, not 200m wide) but
claims they are only an indication of the site and will not be applied in practice.

33.

However, the map is part of the plan, and therefore the extent of the purple circles
is likely to have legal effect if it came to a challenge in court. The statement of
evidence of Sarah Macready on behalf of the New Zealand Archaeological
Association says:15
The rules apply not only to the sites themselves, but to large and arbitrary buffer areas
surrounding them where in most cases no archaeology will be present.

27. I note that a recent practice note adopted by the Council (Attachment D) advises that
the SPVMW identified by purple circles in the overlay maps should provide an indication
only, and that in practice the requirement for consent only applies within 50m of any
edge of the actual extent of the archaeological site where the extent is known, or within
50m of the centre of the purple circle where the extent of the site is not known. However,
the PAUP itself is not clear on this point, and the reduced scope still involves a substantial
area around what may be a very small site (as shown in Attachment C), and potentially a
very much larger area around a more extensive site such as one of Aucklands volcanic
cone pa. Nor is it clear how the known extent of the site will be determined and whether it
would be indicated on the overlays.
28 I note also that this more recent interpretation (50m from the edge of the actual site) is
very similar to what was proposed in the Draft Unitary Plan, on which the NZAA provided
feedback. NZAA made the point then that a proposed 50m buffer around the actual extent
of sites within which consent would be required for a range of activities would impose
unnecessary costs and restrictions on large numbers of landowners That criticism would
still apply to the current interpretation. I note also that a 50m buffer restricting activities
around the unscheduled SPVMW exceeds the 20m buffer proposed around scheduled
SHHP that are also archaeological sites of Maori interest, which is inconsistent

34.

What the Council now says in mitigation is immaterial to what the PAUP requires
legally.

14

Letter from Roger Blakeley to Lee Short, 23 October 2014, A12 says The difficulty has arisen since
notification is that the purple circles on the Overlay purporting to represent the Sites and Places of Value
have a 200m diameter, i.e. a radius of 100m measured from the centre of each circle, rather than a 50m
radius (or 100m diameter) as was originally intended. This is not an accurate reflection of the Council
resolution on the Overlay, and is likely to have been a result of the late addition of the Overlay.
15
Statement of evidence of Sarah Macready on behalf of the New Zealand Archaeological Association 29
October 2014, para 4(c).

35.

The Councils claim that the size of the circles on the overlay is only indicative begs
the question as to what the circles should cover. Each should differ. Some should be
greater than the 7 ha area that the NZAA submission say the circles comprise of.
Many should be only a few square metres. The circles as charted on the overlay are
legally determinative. The problems with the 50m buffer zone identified by the
NZAA are compounded by the Councils mistake in making the circles on the overlay
too large.

36.

By contrast, significant historic heritage places are charted in the PAUPs historic
place maps (PAUP Appendix 9) with no extension of the site listing to include
adjacent properties. Therefore adjoining properties can be developed in accordance
with the ordinary zoning rules, and rights of property owners are not diminished.
Applying an arbitrary 50m buffer around an arbitrary and mistakenly large affected
area will impact the property rights, and values, of many thousands of individuals
whose land is neither valuable nor significant to Mana Whenua.

37.

A significant mistake like that could be corrected by the local authority on

application to the Environment Court under s 292 of the RMA. Section 292 gives the
Court a discretionary power to amend an operative plan to remedy any mistake,
defect or uncertainty in it. 16 We think this would apply to provisions in a proposed
plan which has been given immediate effect.
Mandatory CIAs

38.

The Council claimed at the public meeting on 18 October that the requirement for
CIAs was needed to effectively catch up with what other councils are doing. 17 We
have searched for evidence of this but have not found it.18

39.

The requirement in Chapter B5.4 policy no. 11 and Chapter G2.7.4 for applicants to
consult with Mana Whenua as part of the CIA process is contrary to s 36A of the
RMA which provides:
[36A No duty under this Act to consult about resource consent applications and notices of
requirement
(1) The following apply to an applicant for a resource consent and the local authority:
(a) neither has a duty under this Act to consult any person about the application; and
(b) each must comply with a duty under any other enactment to consult any person about the application;
and
(c) each may consult any person about the application.

16

Re Auckland City Council (EC Auckland) A026/06 7 March 2006 Judge Newhook, para 17.
Penny Perritt said at the public meeting on 18 October 2014 It is actually something that perhaps
Auckland's legacy councils did not actually do a very good job on in terms of our obligations under the
Resource Management Act. In fact, there are many other councils across New Zealand who have adopted
CIA provisions for very many years. So in many respects, Auckland's catching up with other parts of the
country.
17

18

We searched the plans for: Bay of Plenty Regional Council; Hawkes Bay Regional Council; Manawatu-Wangauni
Regional Council; Northland Regional Council; Taranaki Regional Council; Waikato Regional Council; Wellington
Regional Council; Hamilton City Council; Hutt City Council; Napier City Council; Palmerston North City Council
Porirua City Council; Tauranga City Council; Upper Hutt City Council; Wellington City Council; Gisborne District
Council; Chatam Islands District Council; Marlborough District Council; Nelson City Council; Tasman District Council.

There was nothing about cultural impact assessments in any of the RPSs, heritage sections, or district plans.
The most relevant references are to consultation with Tangata whenua/iwi and archaeological assessments.

10

(2) This section applies to a notice of requirement issued under any of sections 168, 168A, 189, and 189A
by a requiring authority or a heritage protection authority, as if
(a) the notice were an application for a resource consent; and
(b) the authority were an applicant.]

40.

Section 36A was inserted in 2005 to remove uncertainty over whether applicants
were required to consult with iwi. CIAs are one of the tools an applicant may use
when preparing an Assessment of Environmental Effects but until now it has only
been an optional tool and not required under the RMA19 or in any existing plan as
far as we are aware.

41.

The Council claims the CIA requirement is not a requirement to consult with iwi (i.e.
under s 36A), but rather the requirement to obtain an expert report. According to
the Council: 20
[cultural] assessments are not about approval: instead they constitute expert advice on
how a proposal might impact on cultural heritage. The council will take that expertise into
account, but it is the council that makes the decision.

42.

We consider that disingenuous, and inconsistent with the words of the PAUP and
the Councils website.

43.

Ch G2.7.4 notes that a CIA is required to include a description of the consultative

process used in preparing the report. Ch B 5.1 of the PAUP describes recognising
and providing for the principles of the Treaty as an objective. Under methods in
this section, are Auckland wide rules for cultural impact assessments. The
purpose of the CIA provisions in the PAUP is directly to reflect the principles of the
Treaty, including shared decision making. Further, the definitions section defines
cultural impact assessment functionality as a report that documents Mana
Whenua cultural values, interests and associations with an area or resource, [and]
the potential impacts of the proposed activity on these values The purposes of
consultation and the purposes of a CIA are largely indistinguishable.

44.

CIAs appear under the heading provisions requiring consultation with Mana
Whenua on the Councils website.21 It follows that even if a CIA itself is not
consultation with iwi, it is likely to be not possible in practice to obtain a CIA that
would be accepted as sufficient by the Council without consulting with iwi.

45.

Consultation is technically not about approval either, as the Ministry for the
Environment notes in a guideline on consulting with Tangata Whenua: 22

19

Consultation with Tangata whenua is specifically required when making policy and planning instruments
under clause 3(1)(d) of Schedule 1 of the RMA. This is different to requiring consultation during a resource
consent process.
20
Auckland Council Resource Consents: Engaging with Iwi on Council website
http://www.aucklandcouncil.govt.nz/
21
ibid
22
Ministry for the Environment Guidelines for Consulting with Tangata Whenua under the RMA: An
Update on Case Law (December 2003, ME 496) available at:

11

the right of tangata whenua to be consulted does not extend to having a right of veto
over the project.

46.

The CIA process in the PAUP is different to obtaining reports from specialists such as
engineers as it is allegedly partly in recognition of the principles of the Treaty of
Waitangi. In Beadle v Minister of Corrections the Environment Court noted that
consultation has the dual purpose of first, recognising the rights of Maori under the
Treaty as a party who has a right to be consulted in certain circumstances (the
recognition limb), and second, to obtain appropriate and accurate information on
the potential effects and effects on affected Maori (the information limb).23

47.

The CIA process would address the information limb if it is appropriate and
accurate. The PAUP offers no quality control.

48.

CIAs under the PAUP also differ from advice from experts in a number of respects
primarily because of uncontrolled conflicts of interests:
(a)

They are not impartial. A CIA is not provided by an impartial expert of Maori
culture such as an historian or anthropologist, it is provided by an iwi
representative. They may all have a strong interest in elevating the practical
impact of the cultural knowledge. Further, it is not provided by an impartial
iwi. It is provided by specifically the iwi that have interests in the area they
believe are likely to be affected.

(b)

There is no provision for objective review. A hydrological or engineering

assessment can be assessed in terms of its adequacy on objective criteria.
Groups such as the Institute of Professional Engineers New Zealand provide
oversight and recourse if an assessment has been prepared negligently. By
contrast, a CIA will contain subjective values and is provided by iwi who are
subject to no oversight. The PAUP says they are to be recognised as the
foremost experts in determining an interpreting their cultural values. That
phrase seems designed to put it beyond even the Council to question or
challenge expressions of opinion by iwi.

(c)

Specialist advice may directly benefit the resource consent applicant and the
public. A person risking capital to develop a site is likely to be interested as
the Council is in whether, say, a structure will be able to withstand
earthquakes, or whether there is a risk of flooding. A CIA does not benefit the
resource consent applicant or third parties or even the Council and
neighbours in this way. The main group most likely to gain from a CIA is the
one preparing it.

(d)

Where an engineers or other experts assessment is required under the

PAUP, it is usually in relation to a specific use, and for the purpose of

http://www.mfe.govt.nz/publications/rma/guidelines-consulting-tangata-whenua-under-rma-update-caselaw/5-how-consultation
23
Beadle v Minister of Corrections (A74/02) 8 April 2002 Judge Sheppard, Commissioner Catchpole,
Commissioner Menzies paras 547, 549

12

ascertaining specified factual information. For example, Under Part 3 Chapter

K5.48.2.5 an engineer must provide an assessment for applications where
buildings are over 20m in height, to determine the wind environment
conditions likely to be created. CIAs can be required for any use or
development within designated areas and are for the broad purpose of
documenting the potential impact on Mana Whenua cultural values.
(e)

The PAUP requires other experts to declare potential conflicts of interests.

Chapter H 5.2.2.3, rule 2(b) requires an applicant applying for a resource
consent for a subdivision to provide an assessment of the affect of the
subdivision on any of the natural resource features identified in rule 2(a) (e.g.
areas of indigenous vegetation within the significant ecological area overlay).
The assessment must be undertaken by a suitably qualified and experienced
person which is defined in Part 4 as follows: [our emphasis]
Suitably qualified and experienced person
A person who can provide sufficient evidence to demonstrate their suitability and competence,
including but not limited to the following criteria:
demonstrated competence in the type and scale of project
formal qualifications
review of work history and relevant experience in the building industry
evidence of successful completion of technical courses, assignments or projects
membership of appropriate trade / professional affiliations
quality assurance policies and procedures
appropriate levels of professional indemnity insurance based on the value of construction
proven performance / historical records (i.e. previous work history for Council)
statements or references from industry peers
confirmation that the applicant will declare any potential conflicts of interest
proof of insurance
continued professional development.

49.

Nothing in the RMA or the Local Government Act obliges the Council to put aside
the common sense experience of regulations and human nature when mana
whenua are involved. The Council is not required to pretend to have an unfounded
belief that iwi representatives are above the normal known drivers to advance
ones family or group cultural and spiritual values at the expense of others, or even
the simple satisfaction of sharing the capacity to exercise power or influence over
others. The PAUP provides no protection against abuses of power.
Immediate effect?

50.

Under s 86B(3)(d) of the RMA a rule in a proposed plan has immediate legal effect if
the rule protects historic heritage. According to the Council the Mana Whenua
provisions came into immediate effect on the date the PAUP was publically notified.
We think this is likely to be incorrect for the following reasons.

51.

First, there needs to be some historic heritage to protect for s 85B(3)(d) to apply.
As the Council did not evaluate the 3600 sites before adding them to the Overlay
this is unknown. We understand there is evidence from the Councils CHI (cultural
heritage inventory) that some of these sites no longer exist. However, the term
historic heritage is widely defined in s 2 of the RMA and includes sites of

13

significance to Maori, including wahi tapu. It could be argued that though the
structure or place may have been destroyed that memory of it still is of significance
to Maori.
52.

Even if there is something of heritage value at the centre of the circle, there is by
definition likely to be nothing relevant within most of the buffer zone if it
commences at the boundary of the actual site. The historic heritage is likely to be
limited to the actual site and not extend to the large buffer zone.

53.

Secondly, some of these sites are already protected under the Heritage New
Zealand Pouhere Taonga Act 2014 (the HNZPT Act).. It is arguable that if a site is
already protected it cannot, or does not need to be protected further. On the other
hand the PAUP has different (and potentially wider) restrictions than under the
HNZPT Act. That would argue against disqualifying the application of s 86B(3)(d)
because of the parallel protections of the HNZPT Act.

54.

Thirdly under section 75(4) (b) of the RMA a district plan rule must not be
inconsistent with a regional plan for any matter specified in section 30(1). Section
30(1) includes (b) the preparation of objectives and policies in relation to any
actual or potential effects of the use, development, or protection of land which are
of regional significance.

55.

In our opinion the only operative regional plans are those of the legacy Councils,
not this PAUP.

56.

Objectives and policies of regional significance include the regional policy

statement. The RPS establishes the framework for the rules and will have a
significant role in the resource consent making processes. It follows that district
plan rules within the PAUP cannot be inconsistent with the regional policy
statement so far as its objectives and policies deal with the actual or potential
effects of the use, development, or protection of land.

57.

According to the Court of Appeal in Auckland Regional Council v North Shore City
Council, Rodney District Council and The Minister for the Environment24 district plans
shall not be inconsistent with the regional policy statement, or any regional plan of
its region in regard to any matter of regional significance or for which the regional
council has primary responsibility under Part IV.

58.

This would include, for example, Chapter B 5.4 Protection of Mana Whenua culture
and heritage which includes policies to schedule and protect land designated
significant to Mana Whenua.

24

Auckland Regional Council v North Shore City Council, Rodney District Council, and The Minister for the
Environment [1995] (CA)

14

59.

Auckland Council noted in a Fact Sheet:25

While many of the rules in the Proposed Auckland Unitary Plan do not have immediate
legal effect, the objectives and policies of the Proposed Auckland Unitary Plan have effect
at the point the plan is notified.
The objectives and policies of the Proposed Auckland Unitary Plan will be weighted against
the relevant operative district and regional plan objectives and policies. The weighting of
objectives and policies in the Proposed Auckland Unitary Plan relates to the degree that
they have been subject to challenge through the submissions and appeal process.

60.

We have not found the legal authority for this statement. There is a strong
emphasis on consultation with any RMA planning process and it is unclear why the
Council say the policies and objectives of the PAUP have immediate effect on
notification.

61.

There is nothing in the RMA or the Local Government (Auckland Transitional

Provisions) Act 2010 which would give the RPS immediate effect. Section 115 of the
transitional legislation states once all appeals are determined, the Council must
then publicly notify the operative date of the proposed plan. Section 160 of the
same Act states:
[160 Auckland Council to notify when plan operative
The Auckland Council must notify the date on which the plan, or each part of the plan, as
the case may be, will become operative in accordance with clause 20 of Schedule 1 of the
RMA.]

62.

Clause 20 of Schedule 1 of the RMA states:

20 Operative date
[(1) Subject to subclause (2), an approved policy statement or plan shall become an
operative policy statement or plan on a date which is to be publicly notified.]

63.

If the RPS in the PAUP does not have immediate effect, then in accordance with the
Local Government (Auckland Transitional Provisions) Act 2010 section 78(2):
On and from November 2010, any regional plans or district plans of existing local
authorities are deemed to be the regional plans and district plans of Auckland Council.
These plans remain until replaced by an operative regional plan or district plan, as the
case may be, made by Auckland Council.

64.

It appears that the regional policy statements in the transitionally adopted legacy
council plans are not overridden by that of the PAUP at this stage.

65.

This creates the legal risk that the district plan level rules pertaining to Mana
Whenua in the PAUP are invalid because of section 75(4) (b) of the RMA.

25

Proposed Auckland Unitary Plan Legal effect: Fact Sheet

http://www.aucklandcouncil.govt.nz/EN/planspoliciesprojects/plansstrategies/unitaryplan/Documents/Key%
20topics%20in%20detail/upkeytopicslegaleffect.PDF

15

66.

For example, the Auckland Regional Councils Regional Policy Statement, that
became operative on 31 August 1999, in Chapter 3 (Matters of Significance to Iwi)
makes no mention of Mana Whenua or Mana Whenua groups and instead talks of
Tangata Whenua. More substantively, the Auckland Council Regional Policy
Statement at Chapter 3, 3.4.8 Method number (11) states:
The ARC and TAs will, where Tangata Whenua are affected, encourage applicants to
consult the appropriate Tangata Whenua groups prior to submitting their applications for
resource consents.

67.

By contrast, the PAUPs CIA provisions in Chapter G 2.7.4 make CIAs mandatory, in
certain circumstances, where iwi require it. A CIA can be triggered under the PAUP
by a wide range of generic activities such as discharges to air (ChG 2.7.4, 4.a.),
drilling to construct a bore (ChG 2.7.4, 4.f.), and mineral extraction. Forced
consultation with iwi even when their interests may not be affected is inconsistent
with a policy that resource consent applicants should be simply encouraged to
consult with Tangata Whenua, and only when their interests are at stake.

68.

There is therefore an appreciable legal risk that the Mana Whenua provisions that
are operative at present contravene the RMA section 75(4) (b) and are therefore
illegal.

69.

The Mana Whenua provisions have been challenged heavily throughout the
submissions process to date. Applying the Councils advice, even if the RPS has
some effect, it should be given less weight than the regional policy statements of
the adopted legacy council plans that are operative by dint of s 78(2) of the Local
Government (Auckland Transitional Provisions) Act 2010.

70.

The Supreme Court in King Salmon26 placed substantial emphasis on the

consultation and testing process of development of a Policy Statement in giving it
determinative authority. The PAUPs regional policy statement has manifestly not
yet benefitted from such a process. It appears to be the wish list of the only side
consulted.
Void for lack of certainty

71.

Some of the policies and rules regarding CIAs and Mana Whenua values are so
vague and uncertain they could be deemed by a court to be void for lack of
certainty. As Westfield said in their submission to the Hearings Panel it is a well
established principle that rules in plans developed under the RMA must be
sufficiently certain that a potential applicant is able to assess on the face of the rule
whether or not that rule applies to their application27 .

72.

If the rule is get a CIA, it is clear enough to achieve that. But the requirement for
certainty is unlikely to be satisfied by that superficiality. The purpose of the laws
requirement for certainty is to uphold the rule of law objective. Citizens are entitled

26
27

Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 38
Westfield submission to PAUP at p 56.

16

to know how they will be affected by a rule, and what conduct enables them to gain
to resource consent. The CIA requirement does not enable that. They cannot know
what the CIA will say.
73.

In addition it is difficult to link particular rules of the substantive provisions of the

PAUP to policies and objectives in the RPS.

74.

Chapter B5.4 provides Mana Whenua almost unfettered discretion over which sites
should be listed as sites and places of value to Mana Whenua. Policy 1 is:
the council will work with Mana Whenua to develop a methodology for identifying,
researching and assessing unscheduled sites and places of significance to Mana Whenua
that will be nominated for scheduling.

75.

Policy 8 is
recognise that Mana Whenua are specialists in determining their values and associations
with their cultural heritage.

76.

Another example is the rules regarding CIAs. Rule G2.7.4, information requirements
7(d) requires a CIA to include a description of the effects of the activity on Mana
Whenua values.

77.

As Dr Palmer states in his advice:28

The applicant is required to obtain a cultural impact assessment, and by terms of the
rules the owner may be obliged to contact one or more iwi or hapu. The rules prescribe
extensively the cultural considerations that must be addressed. These essentially require a
comprehensive consideration of tikanga, which is the cultural view taken by the particular
tribe, iwi or hapu. This obligation raises broad and indeterminate values which in the
context of traditional RMA regulation could well be seen as unreasonable due to
vagueness, uncertainty as to outcomes, and cost to the applicant.

78.

Policy 3 in Chapter E5.2 Sites and Places of Value to Mana Whenua require
subdivision and earthworks to:
a. avoid adverse effects on the values and associations of Mana Whenua with their
sites and places of value and
b. incorporate matauranga, tikanga and Mana Whenua values

79.

The word avoid was interpreted in the Supreme Court King Salmon decision29 as
effectively imposing a requirement that would not permit the listed outcomes to
occur at all. This could be difficult to implement.

80.

The definition of Mana Whenua values in Part 4 Definitions is not exhaustive and
provided only as a guide. Because Mana Whenua values is so broadly defined it is

28

Dr Kenneth Palmer Summary legal view sites and places of value to mana whenua (advice to Democracy
Action, 29 September 2014).
29
Environmental Defence Society Inc v New Zealand King Salmon Co Ltd SC 82/2013, 19 November 2013.

17

impossible for property owners to determine whether their activity will adversely
affect these values.
81.

Although courts tend to apply different approaches when determining evidence on

Maori values and traditions, the Environment Court generally requires probative
evidence.30 The use of technical Maori evidence is common in courts including the
use of anthropologists. These evidence requirements contrast with the lack of
methodology or requirements for CIAs and selection of sites and places of value in
the PAUP.
Process flawed

82.

We understand that some councillors were not aware of the CIA requirements in
the PAUP until after notification. Councillor Mike Lee wrote to Stephen Town, Chief
Executive of the council on 24 March 2014 and said
I am therefore curious to know why I was not aware of these far-reaching changes until I
began to receive emails in January this year.

83.

He goes on to say:
I have found no explicit authorisation by resolution in any of the minutes of any meeting
dealing with the Unitary Plan for:
1. Cultural Impact Assessments;
2. The requirement for resource consent applicants to first approach iwi for such Cultural
Impact Assessments; and
3. The requirement for Cultural Impact Assessment from iwi for consent within Significant
Ecological Areas.

84.

And in a further letter to Mr Town on 21 June 2014 Cr Lee wrote:

the manager(s).are trying to make the case that a normal process of regulatory
decision making took place. By which is meant clear and explicit draft proposals, in depth
consideration of those proposals, albeit by a small group of representatives, a briefing of
the Governing Body, followed by the normal discussion and debate, and final formal
assent.

85.

The Local Government Act 2002 provides a number of principles and requirements
to ensure there is sufficient rigour and transparency in the decision-making
processes. Local authorities are required under s 39 Governing Principles to ensure
that the governance structures and processes are effective, open and transparent.
When making decisions, a local authority should take account of (s 14(1)(c)):
(i) the diversity of the community, and the community's interests, within its district or
region; and
(ii) the interests of future as well as current communities; and
[(iii) the likely impact of any decision on the interests referred to in subparagraphs (i) and

30

Ngati Hokopu ki Hokowhitu v Whakatane District Council C168/2002 (EC).

18

86.

In the course of the decision-making process a local authority must: (s 77(1)(a) and
(b)):
(a) seek to identify all reasonably practicable options for the achievement of the objective
of a decision; and
[(b) assess the options in terms of their advantages and disadvantages; and]

87.

The Harrison Grierson/NZIER review confirms the view generated by a

straightforward reading of the PAUP and the section 32 evaluation. There was no
such identification of all reasonably practicable options. The assessment of
advantages and disadvantages was formulaic and superficial, so weak as to be
nominal only.

88.

It is difficult to see how the Council could have followed these principles and
requirements in its decision-making if many councillors were not even aware of the
CIA requirements until after notification.

89.

The lack of obvious substantive compliance was noted in the NZIER/Harrison

Grierson review of the Councils section 32 analysis of the PAUP. It questioned the
absence of background information on the Mana Whenua provisions particularly
the iwi workshop summary reports. It also noted that the benefits and costs had not
been monetised and there was no justification for this. It indicated lack of intention
to consider real alternatives, or to take the evaluation into account in finalising the
proposals.

90.

In the course of its decision-making process a local authority must give

consideration to the views and preferences of persons likely to be affected by, or to
have an interest in, the matter (s 78(1)).
Partnership, joint management arrangements

91.

Chapter B5.1 Recognition of Te Tiriti o Waitangi partnership and participation is

part of the Regional Policy Statement and provides the overarching framework for
the rules. Chapter B5.1 Policy 3 is:
Recognise and take into account partnership arrangements and agreements between
Mana Whenua and the council when making resource management decisions.

92.

B5.1 Policy 4 is:

Enable the transfer of powers and/or establishment of joint management agreements for
certain functions relating to the development and management of ancestral lands, water,
air, coastal sites, whi tapu and other taonga, and the sustainable management of
natural and physical resources, where an iwi authority:
a. has an ancestral connection or mana over a resource
b. has a clear mandate to represent the interests of that iwi or hap
c. can demonstrate the ability to fulfill the requirements of the RMA, whether directly or
by outsourcing.

19

93.

The term partnership suggests partnership under the treaty or treaty partners.
Environment Court has confirmed that local authorities are not subject to the
Crown obligations under the Treaty.31

94.

The RMA does require substantive and procedural recognition of Maori customary
values. This is reflected in provisions regarding consultation with iwi over proposed
plans, joint management agreements, and requirements to take into consideration
iwi planning documents. Sections 6, 7 and 8 requires that persons exercising
functions under the RMA
(a)

shall recognise and provide for the relationship of Maori and their culture
and traditions with their ancestral lands, water, sites, waahi tapu, and other
taonga (s 6(e));

(b)

have particular regard to Kaitiakitanga (s 7(a); and

(c)

take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)
(s 8).

95.

The Council has justified many of the new rules and policies (e.g. CIA, greater
participation in RMA processes) in the PAUP by reference to ss 6, 7 and 8 of the
RMA.

96.

There are no guidelines in the RMA as to how to take account of the principles of
the Treaty of Waitangi or other requirements in ss 6 and 7. However, all of these
matters are subordinate to the single overarching purpose of the RMA in s 5(1)
which is to promote the sustainable management of natural and physical resources.
Sustainable management is defined in s 5(2) as
managing the use, development, and protection of natural and physical resources in a way,
or at a rate, which enables people and communities to provide for their social, economic,
and cultural wellbeing and for their health and safety while
(a) Sustaining the potential of natural and physical resources (excluding minerals) to
meet the reasonably foreseeable needs of future generations; and
(b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
(c) Avoiding, remedying, or mitigating any adverse effects of activities on the
environment.

97.

This means the Council should have taken a balancing approach and considered the
effect of Mana Whenua provisions on the social, economic, and cultural wellbeing
of the entire community, not just Maori. As the Environment Court said in Living
Earth Limited v Auckland Regional Council32:
The Court has to weigh all the relevant competing considerations and ultimately make a
value judgement on behalf of the community as a whole. Such Maori dimension as arises
will be important but not decisive, even if the subject matter is seen as involving Maori

31

Seatow Limited v Auckland Regional Council [1994] NZRMA 204 (EC); Hanton v Auckland City Council
[1994] NZRMA 289 (EC)
32
Living Earth Ltd v Auckland Regional Council, EC, A126/06 (4 October 2006) para 281

20

issues. Although the Maori dimension, whether arising under s 6(e) or otherwise, calls for
close and careful consideration, other matters may in the end be found to be more cogent
when the Court, as the representative of New Zealand society as a whole decides, whether
the subject matter has an adverse effect. In the end a balanced judgement has to be
made.

98.

In addition the Council is required to take into account the principles of the Treaty
of Waitangi under section 8 of the RMA. The principles of the Treaty are not
exhaustive but generally include the principle of mutual benefit and mutual
obligations to act reasonably and in good faith. Given that many of them are
clearly directly applicable only to the partners they cannot be simply extended to
Councils, which clearly are not partners. The statutory direction is only to take
account of the principles affecting the Crown. These suggest a balancing approach.

99.

The High Court33 has extracted principles from Waitangi Tribunal decisions and
superior courts for incorporation into the RMA context. Some principles include:34

Partnership.
Mutual obligations to act reasonably and in good faith.
Active protection Under this principle, the Crown has an obligation to actively
protect Mori interests.
Mutual benefit This incorporates enabling aspects for both Mori and non-Mori.
Development The Treaty is to be adapted to modern, changing circumstances.
Rangatiratanga Recognising iwi and hap rights to manage resources or
kaitiakitanga over, their ancestral lands and waters.

100. In 1989 the Government announced the following principles would be used when
dealing with issues arising from the Treaty of Waitangi:35

(a) The principle of government or the kawanatanga principle:

(b) The principle of self-management (the rangatiratanga principle):
(c) The principle of equality:
(d) The principle of reasonable cooperation:
(e) The principle of redress:

101. The Principle of Equality was further described as follows:

(c)The principle of equality: Article 3 constitutes a guarantee of legal equality between
Maori and other citizens of New Zealand. This means that all New Zealand citizens are
equal before the law. Furthermore, the common law system is selected by the Treaty as
the basis for that equality, although human rights accepted under international law are
also incorporated. Article 3 has an important social significance in the implicit assurance
33

For example, Carter Holt Harvey v Te Runanga o Tuwharetoa ki Kawerau [2003] 2 NZLR 349 (HC).
Ministry for the Environment Mori Values Supplement: A Supplement for the Making Good Decisions
Workbook (December 2010) p 49.
35
New Zealand Parliament, The Crown & The Treaty of Waitangi: A Short Statement of the Principles on
which the Crown Proposes to Act. These are also in an appendix compiled by Dr Janine Hayward The
Principles of the Treaty of Waitangi, available at http://www.justice.govt.nz/tribunals/waitangitribunal/treaty-of-waitangi/tribunals/waitangi-tribunal/documents/public/treaty-principles-appendix-99
34

21

that social rights would be enjoyed equally by Maori with all New Zealand citizens of
whatever origin. Special measures to attain that equal enjoyment of social benefits are
allowed by international law.

102. The Council has a different version of the principles in its Long Term Plan 20122022. It mentions equality under ritetanga (and mutual benefit) : [our
emphasis]

rangatiratanga the duty to recognise Mori rights of independence, autonomy and

self-determination, including the capacity of hap, Mana Whenua and Mataawaka to
exercise authority over their own affairs. This principle enables the empowerment of
Mori to determine and manage matters of significance to them
shared decision-making a balance of the kwanatanga role in Article 1 and the
protection of rangatiratanga in Article 2
partnership the duty to interact in good faith and in the nature of a partnership.
There is a sense of shared enterprise and mutual benefit where each partner must
take account of the needs and interests of the other
active protection the duty to proactively protect the rights and interests of Mori,
including the need to proactively build the capacity and capability of Mori
ritetanga (and mutual benefit) to recognise that benefits should accrue to both
Mori and non-Mori, that both would each participate in the prosperity of Aotearoa
giving rise to mutual obligation and benefits. Each needed to retain and obtain
sufficient resources to prosper, and each required the help of its Treaty partner to do
so. This includes the notion of equality (for example, including education, health and
socio-economic considerations)
options recognising the authority of Mori to choose their own direction, to continue
their own tikanga (customary practice) as it was or to combine elements of both and
walk in two worlds. This principle includes recognition of Mori self-regulation
the right of development Te Tiriti o Waitangi/the Treaty of Waitangi right is not
confined to customary uses or the state of knowledge as at 1840, but includes an
active duty to assist Mori in the development of their properties and taonga (a
treasured item)
redress the obligation to remedy past breaches of Te Tiriti o Waitangi/the Treaty of
Waitangi. Redress is necessary to restore the honour and integrity of Te Tiriti o
Waitangi/the Treaty of Waitangi partnership, and the mana and status of Mori, as
part of the reconciliation process. The provision of redress must also take account of
its practical impact and the need to avoid the creation of fresh injustice. While the
direct obligation to redress grievances sits with the Crown, council has an important
role in implementing the principle of redress at the regional and local level,
particularly where the redress includes resources within the region

103. It is noteworthy that the Council has not mentioned the element of equality before
the law, instead claiming that it drives toward equality of socio-economic
outcomes.
104. The Council now proposes the following amendments to the principles in Chapter
B5.1 of the PAUP

a. reciprocity
b. rangatiratanga

22

d. partnership
c. shared decision-making
e. active protection
f. mutual benefit
h. the right of development
i. redress
a. reciprocity and recognition of the essential bargain
b. rangatiratanga
c. shared decision-making
d. partnership
e. active protection
f. oritetanga
g. options
h. the right of development
i. redress.

105. Its disturbing that the equality principle in the PAUP appears to have been
transformed into a justification for unequal treatment by the law. We think higher
courts could welcome a chance to determine the question whether a so-called
principle can evolve to appear to contradict clear words of the treaty. Article 3s
guarantee to Maori of all the rights and privileges of British Subjects is generally
recognised to be an example of the kind of non-discrimination clauses that are
common in commercial agreements as well as treaties. It is usually treated as a
promise of equality before the law. The PAUP institutes permanent inequality.
106. Courts might decide to avoid confronting the contradiction, which is now
widespread in New Zealand approaches to the Treaty. They may instead seek to
justify invalidation of the offending PAUP provisions by citing the duty to act
reasonably and in good faith and equality before the law which have been
omitted. A court could read these principles in to the PAUP when interpreting vague
policies and rules.

23

THE TANIWHA TAX

briefing paper on auckland councils
new mana whenua rules

prepared by the new zealand taxpayers union

ENDORSEMENTS

Copyright 2015 New Zealand Taxpayers Union Inc. All rights reserved.

FOREWORD BY JORDAN WILLIAMS

When members of the Taxpayers Union first brought this
issue to our attention, we incorrectly wrote it off as a resource
management or a one-law-for-all dispute. But after more emails
and enquiries from members came through we began to dig
deeper. It became clear that it posed squarely an unnotified and
constitutionally repugnant tax issue. Wed had the question of
regulatory takings on our long term to do list.
This brought it to the top.
Make no mistake, the Mana Whenua provisions in the Auckland
Unitary Plan have enacted a cultural or Taniwha Tax, enforceable
immediately. The provisions may affect the value of perhaps
18,000 properties, and many more in time. It is a variable and
unpredictable capital tax, collected when someone wants to
change their property use. Such uncertainty diminishes prospects
for economic growth as it does not allow people to plan with confidence.
The Archaeological Association says what Auckland Council is doing is not even necessary to
protect heritage because it is already covered under specific legislation.
This briefing paper draws from submissions lodged for, or on behalf of, some of New Zealands
largest corporates, but its points are as applicable to every Auckland homeowner (and potential
homeowner). Most of the messages contained are not that of the Taxpayers Union we have
deliberately repeated what would otherwise go undiscovered in the files of lawyers, planners
and Council insiders. Our work is to shine some democratic light onto what has happened.
The organisations quoted or supporting this report would agree Auckland iwi have a special
place in the regions planning process but are concerned the Auckland Council has imposed an
uncertain and clumsy regime. The organisations have all expressed concerns that the Council
has failed to include elementary safeguards to protect owners, the integrity of the planning
process, or the public interest in secular equality before the law.
The Taxpayers Union exists to promote tax efficiency and to publicise government waste. This
briefing paper fits squarely into those objectives. Politicians and officials know that their tax and
spend powers are constrained by constitutional conventions, specific statutes and procedural
protections. Central and local government cannot take Peters money to pay Paul, without
knowing exactly how it will be calculated, and collected under laws that should apply generally
without distinctions of class, race, religion or other inequalities (other than deemed ability to
pay). Similarly, spending for Pauls benefit must be expressly authorised and accounted for, with
multiple requirements for audit and other protections against corrupt diversion of benefits.
Recently politicians and officials have stepped up their use of devices to sidestep these
protections. Around the world they are known as regulatory takings.
The United States has a specific constitutional prohibition on taking of property for public
benefit without compensation. As a result, there is a large body of case law and legal analysis,
exploring the boundaries between legitimate regulations that on the one hand just happen to
have a discriminatory impact (and transfer wealth from Peter to Paul), with on the other hand
rules that effectively confiscate Peters rights for the benefit of Paul (or many Pauls).
In New Zealand the Public Works Act 1981 embodies the traditional convention (going back
to Magna Carta) that taking private property for public benefit requires fair compensation. But
3

more recent Acts expressly exclude this

principle. Despite the National Partys
claims to uphold property rights they
have put in place some of the worst
provisions. Section 14 (4) of the Heritage
New Zealand Pouhere Taonga Act
2014 means the owner of Wellingtons
Harcourts building cannot claim for the
effective confiscation of the value of his
Lambton Quay property by prohibitions
on demolishing the earthquake prone
facade, which is widely accepted to be a
danger to the public. That is despite the
owners intention to rebuild the historic facade with a safe, but visually identical, structure. The
National Party also passed the Resource Management Act in 1991 with section 85 which largely
excludes compensation when Councils prefer the interests of a particular group, value or cause,
to the detriment of those who own the property or had a legitimate expectation to a particular
land use.
Though most countries expressly protect property rights as fundamental human rights the New
Zealand Parliament has rejected attempts to include them in the Bill of Rights Act. The Human
Rights Commission has recently discussed this anomaly.1
The Taniwha tax is a particularly inefficient tax. It may damage property values without creating
any corresponding benefit to any counterparty. Some economists would argue that a simple
transfer of the cultural impact assessment cost or fee from an owner to an iwi representative is
not significant, because it is zero sum. One persons loss is the others gain.
But the right of iwi to impose their cultural and spiritual preferences, or to invent new ones,
could diminish the value of land within the designated areas without any corresponding benefit
to iwi. The representative might get a fee, and psychological benefit, but that may be dwarfed
by the uncertainty discount imposed on all the properties that have been made vulnerable.
That value damage is probably more significant than the cost of the iwi assessment process.
Disturbingly the auditors of the Auckland Councils evaluation process note that the Council has
made no attempt even to calculate the costs and benefits of the scheme.2
The Taniwha Tax represents one small, novel, completely uncosted and unconstitutional
attempt to create a new category of uncompensated taking, which illustrates the need for a
new and principled approach to regulatory takings. Taking rights and value from people with
the same or worse economic effect as uncontrolled arbitrary taxation, for the benefit of political
favourites alarms us at the Taxpayers Union. We see this policy as uncontrolled taxation, and
the spending of power for politically favoured beneficiaries.

1 Human Rights Commission, Submission on the New Zealand Bill of Rights (Private Property Rights) Amendment Bill said:

If it is considered appropriate to include property rights in the NZBORA then the Commission considers that the following
wording would reflect the international standards:
The right to property

Everyone has the right to own property alone as well as in association with others;

No person shall be arbitrarily deprived of property;

No person shall be deprived of property except in accordance with the law, in the public interest, and with just and
equitable compensation;

Everyone has the right to the use and peaceful enjoyment of their property. The law may subordinate such use and
enjoyment to the interests of society.
2 See the Harrison Grierson/NZIER audit of the Auckland Councils unquantified purported cost/benefit analysis of the mana
whenua provisions, required by section 32 of the Resource Management Act 1991.

The justification for Auckland Councils taking of property rights is alleged benefit from
metaphysical and the spiritual value comfort to third party groups. But there is no evidence of
any such value. There is only evidence that the groups have said they would like the power.
The Taniwha Tax is all of:
1.

the cost of the cultural impact assessments (which are uncapped, but from examples
described to us to date, costing up to $4,000 for householders and far more for
commercial enterprises);

2.

the delays in determining whether cultural impact assessments are required, and/or in
their preparation;

3.

the uncompensated overnight loss in property values;

4.

the reduced mana and confidence of the 18,000 owners whose security of ownership
is affected by the explicit and implicit assertion of Mana Whenua preferences; plus

5.

the damage to civic pride and confidence in the consensus of fundamental

constitutional values of equality before the law, property rights, fairness and due
process.

The last may be more important than the first four costs to the directly affected property owners.
The Council appears to have done a political deal in the closing days before the Unitary Plan
was notified, covering 3,661 cultural sites (and the areas around them) without even being
confident that they exist.
It is a tax and the Taxpayers Union has prepared this paper to publicise it.

Jordan Williams is the Executive Director of the New Zealand Taxpayers Union.

The auditors of the Auckland Councils evaluation

process note that the Council made no attempt even
to calculate the costs and benefits of the scheme.

EXECUTIVE SUMMARY
The Mana Whenua provisions of the Proposed Auckland Unitary Plan (PAUP) are a dangerous
departure from the former Resource Management Act 1991 (RMA) consenting process. They
deserve public scrutiny.
At almost 7,000 pages, the PAUP is so long and complex that there is a risk only legal, planning,
and property industry insiders will appreciate its implications. Public engagement will be limited
to the issues that are brought to the publics attention as potentially troublesome. Most affected
property owners will not become aware of the provisions until they suddenly find there is a site
on or near their land or they are told they need to get a Cultural Impact Assessment (CIA) when
applying for resource consent.
This briefing paper is on the PAUPs Mana Whenua provisions. These provisions create the
potential for certain iwi to apply a cultural tax on particular developments within Auckland. The
tax is undemocratic, uncertain, and is an affront to New Zealands secular public policy. The
Mana Whenua provisions create, in effect, a Taniwha Tax on Auckland development and
housing.
In February 2014, then-Labour Party Maori Affairs Spokesman, Hon. Shane Jones, criticised
Auckland Councils proposal. In the New Zealand Herald he is reported as having said1:

As someone who was involved in the core

group which wrote the Resource Management
Act in 1988-1989 never in our wildest dreams
did we imagine it would lead to 19 new consent
authorities over the Tamaki Makaurau area.
The proponents need to balance heritage against
the cost pressure of developing housing and
land so that the final product is affordable.
Mr Jones warned that unless the process was handled well, the community could end up
having a jaundiced view of Maori heritage.
Mr Jones may be proven right. The Auckland Council has haphazardly declared 3,600 sites as
being of value to Mana Whenua without even establishing whether all the sites are genuine, still
exist, or are of value to iwi.
Protecting New Zealands historic and cultural sites is a worthy objective; however there are
significant protections already in place. The PAUP, under the guise of protection, creates a
whole new level of uncertainty and spiritualisation around these protections.
The Mana Whenua provisions create a significant financial obstacle for ratepayers and
developers. Despite the Plan taking years to draft and develop, the 3,600 sites were only
added in the final days before the Plan was notified and released for consultation. On
notification certain provisions came into effect. The timing may suggest that the clauses were as
much a political decision to increase the influence of Mana Whenua on resource allocation as a
mechanism for protecting sites of genuine historic significance.
1 Shane Jones slams new iwi approval rule, New Zealand Herald, 28 February 2014, http://www.nzherald.co.nz/nz/news/article.
cfm?c_id=1&objectid=11211496

This report should serve as a wakeup call to Aucklanders wanting to avoid more regulatory
uncertainty, impediments on housing development, and taxes. But the issues covered are not
just applicable to Auckland iwi groups are already in the early stages of developing similar
plan changes in Wellington and elsewhere.
It was noted in the recent submission of the Auckland Utility Operators Group, which comprises
Vodafone, Spark, Chorus, Vector and others2:

These consent processes set in place complex, time

consuming and in many cases very costly consenting
processes to deliver infrastructure to Auckland.

2 Statement of evidence of Christopher Mark Horne for Auckland Utility Operators Groups, Chorus New Zealand Ltd, Vodafone
New Zealand Ltd, Spark Trading New Zealand Ltd, Vector Ltd, Vector Ltd, Vector Gas Ltd and Counties Power Ltd in relation to
009 RPS Mana Whenua, 19 October 2014, page 20.

MANA WHENUA PROVISONS

The Mana Whenua provisions in Auckland Councils PAUP came into effect on 30 September
2013 upon the PAUP being publicly notified. Although the Plan is still proposed the Council
considers that section 86B of the RMA means that the provisions related to historic heritage,
including Mana Whenua heritage, are in effect until the Plan is amended as a result of the
current public consultation.1
The Plan will shape Aucklands future by replacing the existing Regional Policy Statement and
the thirteen district and regional plans from the former local authorities that were amalgamated
to form the Auckland Council. It seeks to ensure the various areas of Auckland will operate
under the same set of rules and regulations with a degree of consistency across the region.
The Plan covers matters such as what can be built where, how the Council will provide for the
competing priorities of rural and urban environments, how to maintain the environment, and
how places of cultural or historic significance are protected.

Which proposals may have an adverse effect on Mana Whenua values

and what is now required?
The Mana Whenua provisions make cultural impact assessments (CIAs) compulsory for certain
resource consents where a proposal may have an adverse effect on Mana Whenua values.
Some resource consents, no matter the location, now require a CIA. Where a proposal
may have adverse effects on Mana Whenua values such as discharges to waterairland,
taking of surface water, drilling to construct a bore, mineral extractions, and construction
of significant infrastructure a CIA will be required.2 The requirement also applies where a
subdivision, use or development may affect Mana Whenua cultural heritage. The use of
may is significant. Where there is doubt, the Council will rely on the Mana Whenua groups to
determine whether a CIA is required. That alone creates a vested interest, with CIAs likely to
create a significant income stream to iwi, who are also able to determine to what extent they are
required.
For some locations, merely undertaking earthworks triggers the CIA provisions. The rules apply
too for all resource consents within 150 metres of sites and places of value to Mana Whenua.

Which properties are most affected? Is mine one of them?

As outlined above, some resource consents now require a CIA regardless of the proposals
location, but properties that are near sites deemed significant or of value to Mana Whenua are
most affected by the provisions. According to the New Zealand Archaeological Association3:

The extents of the Sites and Places of Value to Mana

Whenua have been defined by drawing an arbitrary
200m diameter circle around the centre point of all
sites, and then requiring an additional 50m buffer
around those circles, with which the rules are applies
(i.e. a diameter of 300m, affecting an area of 7ha).
1 Some organisations and legal experts dispute that the Mana Whenua provisions are captured by section 86B, but in any case,
without judicial review of the Councils decision, they are being enforced.
2 The full PAUP can be downloaded at http://unitaryplan.aucklandcouncil.govt.nz/pages/plan/book.aspx?exhibit=PAUPHTML
3 New Zealand Archaeological Association Inc., New Zealand Archaeological Association Submission, February 2014 (NZAA
submission), page 5.

There are 61 sites of significance and 3,600 sites of value to Mana Whenua throughout the
Auckland region. The Council has estimated that up to 18,000 properties are affected.4
There are currently 3,661 sites of cultural significance or value in the Unitary Plan. Many of these
sites contain multiple properties. For example, one near Mt Albert Road contains 41 titles. In
addition to the properties in these areas, any property within the 7ha area may also be captured
by the provisions. All of the properties in these areas will be affected, as well as any property
within the 7ha area.
Some iwi groups believe as little as 1.6% of potential Maori cultural heritage has currently been
scheduled.5 On this estimate, there would be as many as 183,000 areas in the Auckland region
that could be deemed places of either significance or value to Mana Whenua.
Purple circles or markers on Auckland Councils electronic map represent some of the 3,600
sites of value and 61 sites of significance to Mana Whenua.

CHECK WHETHER YOUR PROPERTY IS AFFECTED

W W W .T A X PA Y E R . O R G . N Z / P R O P E R T Y C H E C K

4 Letter from Roger Blakeley, Chief Planning Officer, Auckland Council to Lee Short, 23 October 2014 (Blakeley Letter), at
paragraph A22.
5 Te Ara Rangatu O Te Iwi O Ngati Te Ata Waiohua Submission, February 2014, paragraph 4.38.

What sort of sites are they? Have they been verified by the Council?
While the 61 sites of significance have been verified as being of importance to Mana Whenua,
the 3,600 sites of value have not. The Council has confirmed it never verified the existence or
importance of these sites prior to the Plan being introduced or determined whether they were
of value to iwi. Responding to a question on this point, the Councils Chief Planning Officer,
Dr Roger Blakeley, has said the inclusion reflects a precautionary approach and is strongly
supported by most Mana Whenua groups. Dr Blakeley claims that the implicit support indicates
that the sites are considered to be of value.6
The process for selecting the 3,600 sites has been questioned by the NZAA in their submission.
The Association points out that the overlay includes many sites that no longer exist, or whose
presence has never been confirmed. Some of the sites included within the 3,600 sites of value
do not even relate to Maori settlement.
Many of the sites are likely to be shell middens, most of which do not appear to have any
associated settlement remains.7 A midden (also known as a kitchen midden or shell heap)
is an old dump for domestic waste. According to the New Zealand Archaeological Association
shell middens generally hold little significance to Mana Whenua, who are generally more
interested in pa, urupa and kainga.8
Shell middens are usually very small. To date, the Council have been unable to provide any
justification why, for example, a neighbour some 200 metres away may have the ability to
develop their land curtailed due to an ancient site for shell remnants which may only be a metre
wide.

How were the sites selected? Have they always been sacred or special
sites?
We have been unable to reconcile answers from Council officials with the Councils section 32
Report, which is an evaluation report required by the RMA to consider certain matters before
a proposal is put out for consultation. The Report refers to directions by the Council to use
robust information to inform the development of the list of sites and places of Maori origin. To
the contrary, the final list was developed at the last minute (with nearly half the sites removed
because the locations were not available) and was never subject to a section 32 report.9
The Councils identification of the sites was last minute. We understand 3,600 sites of value
were pulled from an original list of 6,000. Despite the significant financial burden on ratepayers,
including the potential decrease in property values as a result of the PAUP provisions, the sites
were included in the last weeks of the two years that led up to the PAUP being released for
public consultation.

6 Statement of evidence of Sarah Diana Mary Macready for The New Zealand Archaeological Association in relation to 009 RPS
Mana Whenua, 29 October 2014, (NZAA Statement of Evidence), page 3.
7 ibid, page 10.
8 ibid.
9 The Taxpayers Union is aware of legal advice that suggests that the Council is vulnerable to judicial review on this point. To
date however, no applicant has challenged the Councils failure to obtain a report covering the list of sites that was put in the
PAUP.

10

The New Zealand Archaeological Association took issue with the way in which the Council
had gone about listing the 3,600 sites as being of value to Mana Whenua without proper
investigation10:

we have serious concerns relating to the

proposed rules for archaeological sites and their
surrounds within the overlay, as the sites have been
effectively scheduled without any prior assessment
and in many cases without confirmation of the
presence, exact location and extent of the sites.

In October, One News reported on a public meeting concerning the Mana Whenua provisions
included an acknowledgment from Ngati Whatua spokesman, Ngarimu Blair, that the sites
needed to be identified more precisely and the Council had done this in a clumsy manner.11

Is the Council sure all the sites even exist?

No. The Councils Chief Planning Officer has acknowledged12:

It is possible that some of the sites no longer

exist. However, the Council is unable to confirm
this without a site visit, and it is not in a position
to undertake site visits in respect of 3,600 sites.
Councils Chief Planning
Officer, Dr Roger Blakeley

The Plan allows Council to require property owners within the 7ha circle around a site to seek
the approval of Mana Whenua to develop their land, even when they are not confident anything
exists.
It is likely that in many cases investigation of the sites by Mana Whenua may return no evidence
of the site holding significance to anyone. But no one knows even the Council hasnt visited
the sites!
In order to determine whether a marked site even exists, property owners (or those nearby) may
need to buy a CIA. Removing a site from the Unitary Plan will require a plan change, and public
notification/submission process that can only happen once the hearing process is complete and
the Council has decided on whether to make any changes to the Plan. That means that even if
they deem a site of no significance now, new significance could arise later when subsequent
assessments are required.
If these sites are of genuine importance, why are they not catalogued with details of precisely
what the importance is?
10 NZAA Submission, page 30..
11 Auckland ratepayers protest iwi approval, One News, 18 October 2014, http://tvnz.co.nz/national-news/auckland-ratepayersprotest-iwi-approval-video-6110733
12 Blakeley Letter at paragraph A16.

11

Whats a cultural impact assessment? Who does them? How much do

they cost?
A Cultural Impact Assessment, or CIA, is a report which documents Mana Whenua cultural
values, interests and associations with an area or a resource, and the potential impacts of a
proposed activity on these values. It offers solutions to address these impacts.13
The Council has told Democracy Action that currently the public is being charged between
$1,500 and $4,000 for CIAs, but we understand that commercial parties are paying far more.
There is no limit on how much Mana Whenua groups can charge for them14 nor does there
appear to be any recourse for property owners who think they are being ripped off. There
is no ability to refuse to pay, review, or challenge the amount charged; or use an alternative
verification mechanism.
The Council has said15:

The Iwi themselves will determine who will undertake

any CIA that might be required, in accordance with the
Councils recognition that Mana Whenua are specialists
in determining their values and associations with their
cultural heritage.
Mana Whenua exercise a monopoly on determining if a site is of cultural significance or value
to them. The Taxpayers Union is concerned that charging for CIAs is likely to create a cultural
charge - a tax on affected developments.
The New Zealand Archaeological Association noted in its submission that the competing
interests of each Mana Whenua group over particular sites are also likely to create problems for
the PAUP:

We note that while the PAUP states a single cultural

impact assessment is required, in practice several may
be needed.

For most sites multiple Mana Whenua groups claim a spiritual or cultural connection. CIAs may
be required from up to 19 Mana Whenua groups for the same project.
It has been noted by the Auckland Utility Operators Group (AUOG) submission that the cost and
content of CIAs vary significantly between Mana Whenua groups, with little in the way of detail
regarding time taken or disbursements to make up the cost.16
While a significant number of sites of value are on public land, utility operators will face
increased costs that will ultimately be passed on to consumers of phone lines, electricity and
even water. The AUOG submission contends that even once a utility operator is granted Mana
13 Part 5 Definitions, PAUP.
14 Blakeley Letter at paragraph A39.
15 Blakeley Letter at paragraph A38.
16 AUOG Statement of Evidence, pages 18-19.

12

Whenua consent it will only be on a project-by-project basis. Subsequent uses of the land by
the utility provider, or other providers, will require additional CIAs.17
CIAs may propose conditions on consents to mitigate cultural concerns. As is explained below,
the Council has a limited ability to reject proposed conditions of a resource consent.

How long will it take to have a CIA completed?

There is no prescribed time frame for how long Mana Whenua groups should take in order to
complete a CIA. The AUOG submission highlights a Chorus project which required a submarine
cable within the Waitemata Harbour. The sign-off for this particular CIA took four months, leading
to significant delays for a large and important infrastructure project.18

If a development obviously has no cultural ramifications, is a CIA still

required?
It is up to the Mana Whenua groups providing CIAs, not the Council, to determine whether a
CIA is required if the work or site is captured by the PAUP provisions. A CIA can be avoided if
certification that one is not required is obtained (or purchased) from the Mana Whenua group (or
a representative thereof).
A New Zealand Herald piece by Sir Bob Jones, published in September, described a difficult
to believe scenario where a property developer was required to seek the approval of 13 Mana
Whenua groups to re-establish a window in a modern 17-storey Auckland CBD office building.
As the building was located close to a site listed as a Mana Whenua site of significance, the
resource consent required consultation with 13 iwi. Without the consent, the Council made
it clear to the property owner that the window could not be put back. The process involved
considerable staff time, and added $4,500 to the cost of the consent.
In responding to questions posed by lawyers acting for Democracy Action, a ratepayer group,
the Councils Chief Planning Officer confirmed the requirements outlined in the article were
correct. Ignoring the requirements, even for something as mundane as reinstalling a shop
window, is illegal and risks prosecution by the Council.19

What protections does the Plan provide to property owners?

The Unitary Plan is extraordinarily permissive for Mana Whenua groups. It allows land to be
scheduled as significant to Mana Whenua on the basis of vague criteria such as metaphysical
and spiritual importance, and places of architectural or educational significance. Mana
Whenua are to work with council to decide whether enough criteria are met to justify
scheduling.
What happens when Mana Whenua and the Council disagree? The Plan recognises Mana
Whenua as the specialists in making these determinations. It follows that the Council will have
to defer to their opinion.

17 ibid.at page 18.

18 AUOG Statement of Evidence, page 18.
19 Bob Jones: Bureaucrats wallowing in cultural correctness, New Zealand Herald, 9 September 2014, http://www.nzherald.
co.nz/bob-jones/news/article.cfm?a_id=250&objectid=11321027

13

What limits are there on conflicts of interest, abuse of process or

worse?
Mana Whenua groups are not merely membership associations for people sharing a bloodline
and culture. They are large commercial organisations. Several Mana Whenua groups command
portfolios in excess of several hundred million dollars, having significant commercial and
property interests in Auckland.20 There is a real risk that Mana Whenua groups are able to
dictate the conditions of development for their commercial competitors.
Despite the obvious risk, the Council has no formal process to ensure Mana Whenua do not
have a conflict of interest in preparing CIAs.21 Further, there does not appear to be any avenue
of recourse for property owners or developers who feel as though a Mana Whenua groups
objections to a development are being driven by a commercial rather than cultural reason.
Abuse of RMA processes for competitive advantage may sound unlikely, but the Government
has been forced to make changes to the RMA in the past as a result of precisely that. In an
article by Simpson Grierson, a law firm, the problem is given some historical context22:

A person is currently free to use any of the tools that

the RMA provides in order to pursue a competitive
advantage, subject only to the potential sanction
of costs. This has led to the supermarket circus,
a situation where an individual, organisation, or
company uses the mechanisms of the RMA for the
competitive advantage in delaying the introduction
of a competing activity into the marketplace.
The use of planning legislation and processes for
trade competition purposes has long been identified
as an issue both under former town and country
planning legislation and then under the RMA.
Household brands, supermarkets, service stations and mega-store companies have regularly
used the RMA to stifle competition. Why would, or should, corporate iwi not use the PAUP Mana
Whenua provisions for the same?
There is also the risk of corruption. Without the procedural safeguards of appeal, judicial
review, democratic oversight, and legal restraints applicable to officials (but not to iwi as private
organisations) the Council has created a public law regime fraught with risk.

20 Property push: Iwis big plan for lasting wealth, New Zealand Herald, 13 May 2013, http://www.nzherald.co.nz/business/news/
article.cfm?c_id=3&objectid=10883212
21 Blakeley Letter at paragraph A41.
22 The Supermarket circus Trade Competition under the RMA, Simpson Grierson, 9 September 2009, http://www.
simpsongrierson.com/naturally-resourceful-the-supermarket-circus/

14

But arent these measures necessary to protect Aucklands heritage?

According to the New Zealand Archaeological Association - no. The Associations submission
on the Mana Whenua provisions was damning of several aspects of the plan relating to the
identification of sites.
They found that the PAUP essentially doubled-up with the provisions of the Historic Places Act
1993 (HPA):

we do not see value in plans under the RMA

undertaking blanket protection of archaeological
sites as this can only cause confusion with the
HPA and frustration for all parties involved. The
blanket protection role of the HPA does not need
to be duplicated in plans under the RMA.
What are the costs of these provisions?
The Mana Whenua provisions will drive up the cost of development and housing in Auckland.
That could keep the heat turned up on the Auckland property market. Without a complete
rewrite the cost of the provisions will be determined by the iwi groups who are left to decide
the scope of the cultural protections and nature of conditions the groups seek to impose on
resource consents.
CIAs also represent a pernicious example of an extractive institution. Extractive institutions
reflect power structures that allow politically connected elites to rig rules in their favour and
extract wealth from the politically unconnected. Such a vicious circle foments uncertainty where
businesses and individuals cannot plan effectively and take the investment decisions necessary
to generate economic growth and prosperity.
In their 2013 book, Why Nations Fail, Daron Acemoglu and James A. Robinson explain the
dangers of extractive economic institutions which

[extractive institutions] do not create the incentives

needed for people to save, invest, and innovate.
Extractive political institutions support these
economic institutions by cementing the power
of those who benefit from the extraction.
Regarding CIAs, iwi appear to have gained political favour with the Auckland Council, who in
their Proposed Auckland Unitary Plan have introduced a regime nominally concerning cultural
taonga which in reality supports each iwis ability to extract wealth from Auckland property
owners.

15

Will iwi have the ability to block or veto resource consents?

The Council will have final authority to give or deny consent, but its new Unitary Plan says that
Mana Whenua values should be protected from subdivision, development or use that may result
in their loss or degradation; and that adverse effects on the values of sites and places of value
to Mana Whenua should be avoided. This means that if Mana Whenua claim the proposal will
have negative effects on their values, the Council will be in a risky legal position if they allow
consent. It may have to grant it subject to expensive modifications (even if those values are
entirely spiritual in nature).

Why are the provisions in effect when the Unitary Plan is still
proposed? Why is there not more public outcry?
Section 86B of the RMA deems provisions relating to historic heritage to come into effect upon
public notification, in other words, at the beginning of any consultation process. Because, in the
Councils view, the Mana Whenua provisions are about protecting heritage, they are in effect
until the Plan is amended as a result of the current hearing process. Legal experts have said the
process could take up to two years to complete and there is no guarantee the Hearings Panel
will recommend changes in this area.
We do however understand the provisions are being lightly enforced.23 It is possible Council
officials are sensibly ignoring the law. But that is unsustainable. Once the Plan is confirmed,
Mana Whenua groups will have no reason not to force the Council to comply with the
provisions. Common sense may be sacrificed, especially where commercial interests are at
stake.
The PAUP is also incredibly complex. The plan itself is some 7,000 pages. The Council received
more than 9,400 submissions, more than 1,300 of which opposed the Mana Whenua provisions
(which are only contained in a few pages of the Plan). The consultation process has its own
dedicated website, including a YouTube video just for lawyers and planning experts assisting
clients with the hearing process.24
The Panel have set up a process that will make genuine public engagement with non-expert
concerned citizens very difficult to achieve. For this briefing paper the Taxpayers Union has had
to consult with, and rely upon, numerous RMA, legal, and planning experts. We were amazed
that the Hearing Panels chairman recently told the New Zealand Herald that submitters do not
need their lawyers to submit for them.

Didnt Councillors agree to these provisions though? Why didnt they

prevent this?
According to Waitemata and Gulf Ward Councillor, Mike Lee, the Unitary Plan was rushed
through Council last year with extraordinary speed.25 Little or no time was given to consider a
significant amount of feedback from the public. Mr Lee also claims scrutiny of the document
by Councillors was obfuscated by Council officials, who claimed it was confidential to
management.
These claims from such a long-serving Councillor raise some serious concerns with the degree
of oversight granted to Aucklands elected representatives by Council management.
23 Even the Councils Chief Planning Officer has acknowledged that his officials are ignoring more awkward provisions. Refer to
Blakeley Letter at paragraph A14.
24 Auckland Unitary Plan submitter hearing process, Auckland Council, 22 October 2014, https://www.youtube.com/
watch?v=bfmOsxiJ4LQ&list=UUg_Du2aJ-cllbiANjDKrzwQ
25 Mike Lee email, 4 June 2014.

16

Are the provisions legal?

Associate Professor Kenneth Palmer of Auckland University believes the provisions are
vulnerable to legal challenge:

The conventional method of recognising historic

heritage and the relationship of Maori to ancestral
lands (which includes lands no longer owned by
Maori), is to list in the plan the buildings or sites of
heritage significance which includes cultural heritage.
The cases decided by the Environment Court indicate
that a listing must reach a threshold for inclusion.
He goes on to say in his summary of submission:

The policies and rules relating to sites and places of

value to mana whenua, inserted at the last minute in
the Proposed Auckland Unitary Plan, which lists 3600
sites of value, is a substantial extension of the power
of regulation, which does not have any precedent in
earlier district plans or unitary plans in New Zealand.
As a precondition of making any policy or including
any rule in a proposed plan, section 32 of the RMA
requires the council to carry out an evaluation as
to whether or not the proposed provisions are the
most appropriate way to achieve the purpose set
out. The evaluation must have regard to efficiency
and effectiveness, and other methods which may be
appropriate, and include a benefit and cost analysis
of the proposal and possibly the risk of acting or not
acting where there is insufficient information available.
The section 32 analysis carried out by Auckland Council
contains extensive repetitive rhetoric justifying partly
on a precautionary basis the inclusion of the new
provisions relating to places of value to mana whenua.
The analysis does not include any assessment of the
individual 3600 sites, which is essential to comply with
an adequate and complete assessment under s 32.
This failure to provide any details of the qualifications
of each of the 3600 sites can be the subject of
submissions in respect of the proposed unitary plan,
and that is what is happening at the present time.

17

Professor Palmer also believes that the Council has acted outside its powers:

Presently the rules transfer the burden of investigation

from the council to an applicant for a resource consent.
The applicant is required to obtain a cultural impact
assessment, and by terms of the rules the owner may
be obliged to contact one or more iwi or hapu. The
rules prescribe extensively the cultural considerations
that must be addressed. These essentially require a
comprehensive consideration of tikanga, which is the
cultural view taken by the particular tribe, iwi or hapu.
This obligation raises broad and indeterminate values
which in the context of traditional RMA regulation
could well be seen as unreasonable due to vagueness,
uncertainty as to outcomes, and cost to the applicant.
Furthermore the rules specifically require that the
applicant consult with mana whenua as part of this
process. This obligation of consultation appears to be
contrary to an amendment to the RMA in 2005, inserting
section 36A. Section 36A states that an applicant for a
resource consent does not have a duty to consult with
any person about the application. This amendment
was specifically intended by Parliament to remove
a legal uncertainty as to whether applicants were
required to consult with iwi. Unfortunately the Council
may have the power to require further information
if the cultural impact report is not produced.
Is Te Tiriti o Waitangi justification for disturbing Aucklanders property
rights?
No. The Crown is currently engaged in a settlement process to resolve the historical claims
of iwi, many of whom wrongly saw their land alienated by Crown action. The justification for
settlement is consistent with New Zealands inherited English common law system under which
Maori were entitled to respect of their property rights which would not inhibit the rights of
other New Zealanders. Background information on The Office of Treaty Settlements website
underlines this idea in a frequently asked questions section26:

26 Office of Treaty Settlements, Healing the Past, Building a Future, page 165. Supporting information accessed from http://nz01.
terabyte.co.nz/ots/DocumentLibrary/RedBookSupportingInformation.pdf on 4 March 2015.

18

English common law, which New Zealand inherited,

recognises the customary rights and aboriginal title
of indigenous people. The Treaty of Waitangi also
recognised such rights. Recognition of such rights is
therefore consistent with a legal system which itself
recognises such property rights, and does not conflict
with the general principle of equality under the law.
Through its actions in the 19th century the Crown wrongly failed to recognise the property rights
of Maori. The Treaty of Waitangi recognised the equality of all New Zealanders under the law
consistent with New Zealands common law framework. Cultural impact assessments ignore this
important principle and do not fully recognise the property rights of Auckland property owners.
Just as the Crown was wrong not to recognise the property rights of iwi under the Treaty,
Auckland Council is wrong not to recognise the property rights of local property owners.

Why arent others resisting the Taniwha Tax?

More than 1,100 people submitted against the Mana Whenua provisions in the Councils formal
process, but understandably others are fearful of a public campaign that risks being seen as
unsympathetic to Maori interests.
Some organisations appear to be too reliant on the Council for funding. For example the
Employers and Manufacturers Association (Northern) should be leading this campaign, but we
can only assume that it has not been vocal because Auckland Council, and its subsidiaries,
wield significant financial power over the lobby group. The Council may be preventing
campaigning on matters the Council is politically vulnerable on. The EMA (Northern) did say in
its submission to the Unitary Plan (which it does not appear to have publicised), that:

EMA agrees in principle with the concept of Cultural

Impact Assessments.After all, we do not want people
digging up and accidentally destroying sites that may
be of significance to the Tangata Whenua. However the
set of proposed rules set out in Part 3, Chapter G.2.7.4.
falls far short of the mark. The problem is that the whole
proposed rules structure is half baked, showing obvious
signs of having been prepared in haste and without
adequate thought as to the possible implications and
perverse outcomes that such rules could cause. For
instance the scope of the requirement for CIAs is so
broad and ill-defined as to possibly require a CIA for
every resource consent. Part 4 (I) requires a CIA when
there is construction of any significant infrastructure
without reference to where such infrastructure is being
constructed! Then again the rules require a Local
Board to require consultation with every Iwi within
19

its area even though the proposed development may

be only within the territory of one Iwi and have no
relevance to the other Iwis in the local board area. I
could go on and on but the point is this- This whole
discussion needs to be removed from the Unitary Plan
and taken off line for progress in a different forum.
Yes- it does need to be done- but by the Unitary Plan
is the wrong vehicle for a discussion such as this that
is still in its early formative stages. Let the matter be
reintroduced at a later date as a variation to the unitary
plan-but let it be thoroughly discussed and consulted on
first. Undue and indecent haste will serve the interests
of no-one least of all the Tangata Whenua.
The Property Council, which also expressed major concerns with the Mana Whenua provisions
in its submission, but is also reliant on the Councils CCOs for financial support. We can only
assume that is the reason it has not, to date, supported this groups efforts to expose the
Taniwha Tax.

20

CASE STUDY: AUCKLAND RAIL LOOP

In 2011 Aucklands Maori Statutory Board raised objections to the City Rail Link
tunnel due to the presence of the taniwha, Horotiu. The entity lives in an ancient
creek running past the Town Hall and down Queen Street.*
The Councils own maps indicate that there are several sites of significance to
Mana Whenua throughout the CBD that could prove problematic for the City Rail
Link project.

* Taniwha in the way of Auckland rail loop, Fairfax, 8 June 2011, http://www.stuff.co.nz/national/5114496/
Taniwha-in-the-way-of-Auckland-rail-loop

21

APPENDIX: WHAT HAVE OTHERS SAID ON

THE ISSUE?
auckland utility operators group, which comprises vodafone, spark,
chorus, vector and others

Quotes are from the AUOG PAUP submission:

The UFB rollout is substantially affected by extensive areas of Auckland subject to Sites and
Places of Significance and Value to Mana Whenua, and Extent of Heritage Place (Maori origin)
overlays, including the buffer areas around these features.

My experience on this project has been that the ability of some iwi to adequately engage and
respond in consenting processes under the Unitary Plan is very mixed due to the extensive
volume of applications now requiring their attention, which many iwi are not adequately
resourced for. It can also be a very costly and time-consuming process for applicants in a
process where there is largely no control over costs or timeframes.

My opinion is that the situation that currently exists due to these provisions does not achieve
the outcome sought by B5.1; that is, meaningful engagement in accordance with Treaty
principles.

22

The delays that have been experienced with CIAs to date can represent a considerable time
delay and cost implication on resource consent decision-making. These time delays and costs
can also be experienced where ultimately there is no need to obtain a CIA. Hence in this case it
is not effective or efficient.

From the extensive hui with iwi I have been involved with throughout the Chorus UFB
consenting programme, I understand that many of the iwi are seeking that substantially more
Sites and Places of Significance and Value be added to the Unitary Plan.

Sites and Places of Value to Mana Whenua are in my experience more related to recorded
archaeology such as middens or pits.

The Sites and Places of Value in particular have had a substantial impact on the Chorus UFB
programme as they include a 200m diameter buffer circle centred on where best information
indicates the archaeological feature is located, with a further 50m buffer around the buffer
circle, resulting in a 300m diameter circle. This is effectively a buffer on a buffer. As the
Commissioners can no doubt appreciate, this affects a substantial area, which in many cases
is well away from the recorded feature, including a substantial number of roads and private
adjacent sites where customers will require connections.

Aside from the timeframe, cost and logistical issues for Chorus to work through such a
process, as I will outline later many Mana Whenua groups are simply not resourced to deal
with the volume of work, particularly when combined with requests by other applicants across
Auckland.

In my experience, the ability of iwi to respond in a timely manner to Chorus in terms of

attendance at hui, reviewing consultation information provided and responding to requests
to sign off specific designs has been very mixed, which is reflected in the variable resources
available to Mana Whenua. The regime set up in the Unitary Plan as notified is placing an
extremely onerous burden on both applicants and Mana Whenua.

Since notification of the Unitary Plan, I have been involved in a number of projects where Mana
Whenua groups have wanted to prepare a CIA. In one instance, on a Chorus submarine cable
project within the Waitemata Harbour that I have been involved with, it took approximately four
months for a CIA to be delivered, which resulted in significant delays to being able to lodge the
application. In that instance it was resourcing that delayed the delivery of the CIA, rather than
the scale of any issues associated with the project.

I have also found the costs and contents of CIAs to be highly variable, with limited, if any, detail
provided on time and disbursements to make up the cost.

23

The way the current Unitary Plan regime is being implemented by the Council can result in
multiple Mana Whenua groups wanting to prepare CIAs independently of each other for the
same works, and does not appear to contemplate an independent third party drawing together
the issues raised by multiple groups into a single independently prepared assessment.

In addition to the issues with CIAs per se that I have just outlined, there are also time and cost
implications for even determining if a CIA is required due to the quite inflexible requirements of
the Unitary Plan that do not take into account the nature of the works and likelihood of issues.

While only a small and urgent job to address service issues with a Vector customer, the
consent processing took an additional approximately 12 working days (over and above the
standard 20 working day processing timeframe) while the Councils Cultural Impact Facilitator
contacted the relevant iwi representatives to confirm that a CIA was not required. No iwi
representatives requested a CIA. Given the extent of the Sites and Places of Value to Mana
Whenua around Auckland, I would expect these issues are likely to arise very frequently for
small scale routine infrastructure works in formed road corridors, even where well away from
the actual feature being protected.

No CIAs were ultimately requested, but this still required attendance at an on-site meeting by
iwi representatives and resulted in additional time and cost to the project.

However, I have had one experience with a Chorus project in Auckland where a deployment
method agreed with an iwi as part of an RMA consent process is at odds with how Heritage
New Zealand would like the work deployed, and they are also not satisfied with the approved
discovery protocol agreed with iwi and consented by the Council for that project.

These consent processes set in place complex, time consuming and in many cases very costly
consenting processes to deliver infrastructure to Auckland.

24

New Zealand archaeological association

Quotes are from the New Zealand Archaeological Association PAUP submission:

To

require both a resource consent under the RMA and an authority under the HNZPTA in
relation to thousands of unevaluated and unscheduled sites will place an unnecessary burden
on landowners and others.

In summary, they impose cultural and archaeological impact assessment requirements (with
the potential for multiple cultural impact assessments from different iwi groups) over large
buffer areas where no archaeological sites are known to be present; they restrict even minor
earthworks for infrastructure purposes, again over large buffer areas where no archaeological
sites are known to be present; and they restrict archaeological testing for assessment purposes,
which would work against rather than for the identification and protection of unrecorded
archaeology.

This approach did not take account of the fact that a number of sites with accurate GPS
locations would have been recorded immediately prior to or during development and would
subsequently have been destroyed, in many cases under authority from Heritage New Zealand
(formerly the New Zealand Historic Places Trust).

However, places without archaeological remains cannot be described as archaeological sites,

which are defined by their physical evidence. Hence this does not apply to the [Sites and Places
of Value to Mana Whenua], all of which are archaeology of Maori origin.

It is not appropriate for thousands of unscheduled sites that have undergone no such
evaluation to be subject to consent requirements in addition to the statutory requirements of
the HNZPTA.

The extensive creation of dual processes would place a significant and unnecessary burden
on land owners, land managers and other and would ultimately risk undermining public support
for the protection of archaeological sites.

The costs to landowners and land managers or applying the proposed rules relating to SPVMW
are not assessed of quantified in any way. It is merely stated that there will be costs.

However, I do not support the use of statutory methods in respect to the thousands of
unscheduled archaeological sites on the [Sites and Places of Value to Mana Whenua] overlay
which have not been evaluated or in many cases confirmed, and in respect to large areas
around those sites which are not known to contain any archaeological remains and in most
cases are unlikely to do so.
25

WWW.TAXPAYERS.ORG.NZ
26

25 August 2014

Official Information Request No. 9000131059

(Please quote this in any correspondence)

Mr Jordan Williams
New Zealand Taxpayers Union Inc
PO Box 10518
Wellington
Via email: jordan@taxpayers.org.nz
Tn koe Mr Williams
Local Government Official Information and Meetings Act 1987
Re: Costs of PAUP

I refer to your email, which we received on 29 July 2014, requesting information about the
costs of producing the Proposed Auckland Unitary Plan.
The Auckland Unitary Plan has been developed as a requirement of the Local Government
(Auckland Transitional Provisions) Act 2010. It is the largest and most extensive planning
exercise in New Zealand local government. Preparing this plan avoids the need to continue
reviewing and updating the legacy regional policy statement, four regional plans and seven
district plans the council inherited from the eight legacy councils.
The cumulative costs of reviewing and amending these plans would far exceed the costs of
preparing and amending one combined plan for Auckland. There would also be on-going
costs and inefficiencies for the development and infrastructure sectors as a result of a lack of
standardisation of planning controls.
I answer your questions as follows:
2.

How the reported $30 million was calculated

Calculated projected costs for the Unitary Plan and Independent Hearings Panel
were presented to Auckland Councils Budget Committee, 27 March 2014. Projected
costs up to the 2016/17 financial year are $28.4m. The Budget Committee agenda
shows these costs. See pages 16 -19 of the agenda which is available on councils
website at the following location:
http://infocouncil.aucklandcouncil.govt.nz/Open/2014/03/BUD_20140327_AGN_4803
_AT.PDF

3.(a)

Proportion of costs attributed to Mana Whenua material in the PAUP

Approximately one seventh of total costs up to 30 September 2013 (date of Plan
notification) were associated with preparing provisions which respond to the Treaty of
Waitangi and associated consultation with Mana Whenua.

Private Bag 92300, Auckland 1142 | aucklandcouncil.govt.nz | Ph 09 301 0101

3.(b)

Advice received regarding overlapping Mana Whenua interests

Auckland Council received no advice regarding overlapping Mana Whenua interests.

3.(c)

Advice received regarding competing claim

Auckland Council received no advice regarding competing claims between Mana
Whenua groups.

3.(d)

Advice received regarding commercial interests in cultural impact assessment

requirements
Auckland Council received no advice regarding Mana Whenua organisations having
commercial interests in cultural impact assessments.

If you have any further queries please contact me on (09) 301 3815, quoting Official
Information Request No. 9000131059.
Nku noa, n

Blair Doherty
Information Advisor
Public Information Unit
Auckland Council
9000131059

Private Bag 92300, Auckland 1142 | aucklandcouncil.govt.nz | Ph 09 301 0101

Auckland Plan Committee

OPEN MINUTES

Minutes of a meeting of the Auckland Plan Committee held in the Reception Lounge Level 2,
Auckland Town Hall, 301-305 Queen Street, Auckland on Tuesday, 12 February 2013 at
10.05 am.

PRESENT
Chairperson
Deputy Chairperson
Councillors

Deputy Mayor Penny Hulse

Cr George Wood, CNZM
Cr Anae Arthur Anae
Cr Cameron Brewer
Cr Dr Cathy Casey
Cr Sandra Coney, QSO
Cr Hon Chris Fletcher, QSO
Cr Michael Goudie
Cr Ann Hartley, JP
Cr Mike Lee
Cr Des Morrison
Cr Richard Northey, ONZM
Cr Calum Penrose
Cr Dick Quax
Cr Noelene Raffills, JP
Cr Sharon Stewart, QSM
Member David Taipari
Member Patience Te Ao
Cr Sir John Walker, KNZM, CBE
Cr Wayne Walker
Cr Penny Webster

(From 11.35 am, Item 9; until 1.17 pm, Item 10)

(Until 1.06 pm, Item 10)

(From 1.58 pm, Item 14)

(Until 12.52 pm, Item 10)

APOLOGIES
Mayor
Cr

Minutes

Len Brown, JP
Alf Filipaina

On Council business
On Council business

Page 1

Auckland Plan Committee

12 February 2013
1

Apologies
Resolution number APC/2013/1
MOVED by Cr W Walker, seconded Deputy Mayor PA Hulse:
That apologies from Councillor Stewart for early departure, Councillor Quax for
lateness and Mayor Brown and Councillor Filipaina for absence on Council
business, be accepted.
CARRIED

Declaration of Interest
There were no declarations of interest.

Confirmation of Minutes
Resolution number APC/2013/2
MOVED by Cr GS Wood, seconded Cr AJ Anae:
That the minutes of the Auckland Plan Committee held on Monday, 17 December
2012, be confirmed as a true and correct record, subject to the following amendment
to Item 12 Housing Strategic Action Plan: Stage 1 Draft for Approval, resolution g)
to read as follows:
g)

Amend section 4 (Next Steps) of the Housing Action Plan to note that a
financial evaluation of the non regulatory options is underway.
CARRIED

Petitions
There were no petitions.

Public Input
There was no public input.

Local Board Input

There was no local board input.

Extraordinary Business
There was no extraordinary business.

Notices of Motion
There were no notices of motion.

Minutes

Page 2

Hauraki Gulf Marine Spatial Plan

Cr Anae entered the meeting at 11.35 am.
Moved: Deputy Mayor Hulse

Seconded: Cr P Webster

That the Auckland Plan Committee:

(a)

Approve the following recommendations of the Hauraki Gulf Forum dated

10 December 2012:
(i)

That the project structure shown in Figure 1, Attachment A be endorsed.

(ii)

That the proposed project steering group comprising 8 iwi representatives and 8
representatives of local government and statutory agencies be endorsed.

(iii)

That one of the members of Auckland Council and one of the members of the
Waikato Regional Council on the steering group, be members of the Hauraki
Gulf Forum.

(iv)

That the current chair of the Hauraki Gulf Forum, be the Forums representative
on the project steering group.

(v)

That the Hauraki Gulf Marine Spatial Plan project manager, once appointed,
ensures regular reports are provided to the Hauraki Gulf Forum.

(vi)

That the Forum ensures the Hauraki Gulf Marine Spatial Plan is fulfilling the
requirements of the Hauraki Gulf Marine Park Act by providing feedback,
assistance and guidance from both the Forum and its representatives on the
steering group and management team.

(vii) That the Hauraki Gulf Forum provide secretarial services to the project steering
group.
(b)

c)

Minutes

Agree that the roles of the groups shown in the project structure in Figure 1,
Attachment A are as follows:
(i)

The Stakeholders' Working Group will compile information and evidence,

analyse, represent all points of view, debate and resolve conflicts and work
together as a group, and with the Project Steering Group, to achieve consensus
on the proposed Hauraki Gulf Marine Spatial Plan.

(ii)

The Project Steering Group will provide leadership, strategic thinking, challenge,
testing and guidance to the Stakeholders Working Group, to achieve consensus
on the proposed Hauraki Gulf Marine Spatial Plan and recommend it to the
relevant statutory authorities.

(iii)

The decision-making organisations will include: statutory planning authorities

(Auckland Council and Waikato Regional Council for coastal plans and
Auckland Unitary Plan under the Resource Management Act 1991, DoC for
marine reserves and MPI for sustainability measures under the Fisheries Act
and aquaculture plans), and implementation (Iwi management plans) and
monitoring (Hauraki Gulf Forum for monitoring of overall implementation under
the Hauraki Gulf Marine Park Act).

(iv)

The final decision-making over the management under the Resource

Management Act of the Coastal Marine area of the Auckland region remains the
statutory responsibility of the Auckland Council.

Agree to appoint Councillors Webster and Morrison (one of whom being a member of
the Hauraki Gulf Forum) to be the Auckland Council representatives to the Hauraki
Gulf Marine Spatial Plan Project Steering Group.

Page 3

Auckland Plan Committee

12 February 2013
Cr Lee moved the following amendments, seconded by Cr Fletcher:
a)

That the Auckland Plan Committee recognises the outstanding unique values of the
Hauraki Gulf and endorses progressing Spatial planning for the Hauraki Gulf.

b)

That the Auckland Plan Committee endorses its earlier rejection (2 October 2012) of
the membership basis of the proposed project steering group and instead
recommends the adoption of a similar process to that used in the preparation of the
only existing statutory spatial plan, the Spatial Plan for Auckland (see Part 6, Section
79 of the Local Government (Auckland Council) Amendment Act 2010) known as the
Auckland Plan.

c)

That this should include as much as practicable, co-operation and co-ordination with
the Waikato Regional Council, working with recognised Iwi groups and Mana
Whenua and the many stakeholders listed in the proposed Stakeholders Groups.

d)

That as with the preparation of the Auckland Spatial Plan (the Auckland Plan), the
Hauraki Gulf Spatial Plan should be subject to the Special Consultative Procedure
(s.83 of the Local Government Act 2002) to acknowledge the importance of the
Hauraki Gulf to the people of Auckland.
A division was called for, voting on which was as follows:
Against:
For:
Councillors: Cameron Brewer
Councillors: Anae Arthur Anae
Dr Cathy Casey
Michael Goudie
Sandra Coney
Ann Hartley
Hon Chris Fletcher
Penny Hulse
Mike Lee
Des Morrison
Calum Penrose
Richard Northey
Sharon Stewart
Noelene Raffills
Sir John Walker
David Taipari
Wayne Walker
Patience Te Ao
Penny Webster
George Wood
The division was declared LOST by 9 votes to 11.
LOST

The Chairperson put the substantive motion:

Resolution number APC/2013/3
MOVED by Cr P Webster, seconded Cr NM Raffills:
That the Auckland Plan Committee:
(a)

Minutes

Approve the following recommendations of the Hauraki Gulf Forum dated

10 December 2012:
(i)

That the project structure shown in Figure 1, Attachment A be endorsed.

(ii)

That the proposed project steering group comprising 8 iwi representatives

and 8 representatives of local government and statutory agencies be
endorsed.

(iii)

That one of the members of Auckland Council and one of the members of
the Waikato Regional Council on the steering group, be members of the
Hauraki Gulf Forum.

(iv)

That the current chair of the Hauraki Gulf Forum, be the Forums
representative on the project steering group.

(v)

That the Hauraki Gulf Marine Spatial Plan project manager, once
appointed, ensures regular reports are provided to the Hauraki Gulf
Page 4

Forum.
(vi)

That the Forum ensures the Hauraki Gulf Marine Spatial Plan is fulfilling
the requirements of the Hauraki Gulf Marine Park Act by providing
feedback, assistance and guidance from both the Forum and its
representatives on the steering group and management team.

(vii) That the Hauraki Gulf Forum provide secretarial services to the project
steering group.
(b)

c)

Agree that the roles of the groups shown in the project structure in Figure 1,
Attachment A are as follows:
(i)

The Stakeholders' Working Group will compile information and evidence,

analyse, represent all points of view, debate and resolve conflicts and
work together as a group, and with the Project Steering Group, to achieve
consensus on the proposed Hauraki Gulf Marine Spatial Plan.

(ii)

The Project Steering Group will provide leadership, strategic thinking,

challenge, testing and guidance to the Stakeholders Working Group, to
achieve consensus on the proposed Hauraki Gulf Marine Spatial Plan and
recommend it to the relevant statutory authorities.

(iii)

The decision-making organisations will include: statutory planning

authorities (Auckland Council and Waikato Regional Council for coastal
plans and Auckland Unitary Plan under the Resource Management Act
1991, DoC for marine reserves and MPI for sustainability measures under
the Fisheries Act and aquaculture plans), and implementation (Iwi
management plans) and monitoring (Hauraki Gulf Forum for monitoring of
overall implementation under the Hauraki Gulf Marine Park Act).

(iv)

The final decision-making over the management under the Resource

Management Act of the Coastal Marine area of the Auckland region
remains the statutory responsibility of the Auckland Council.

Agree to appoint Councillors Webster and Morrison (with one Councillor being
a member of the Hauraki Gulf Forum) to be the Auckland Council
representatives to the Hauraki Gulf Marine Spatial Plan Project Steering Group.

A division was called for, voting on which was as follows:

For:
Against:
Councillors: Anae Arthur Anae
Councillors: Cameron Brewer
Michael Goudie
Dr Cathy Casey
Ann Hartley
Sandra Coney
Penny Hulse
Hon Chris Fletcher
Des Morrison
Mike Lee
Noelene Raffills
Richard Northey
David Taipari
Calum Penrose
Patience Te Ao
Sharon Stewart
Penny Webster
Sir John Walker
George Wood
Wayne Walker
The division was declared EQUAL.
The chair exercised casting vote for, so motion was CARRIED.
CARRIED
Resolution number APC/2013/4
MOVED by Cr Hulse, seconded Cr Walker:
That the meeting adjourned at 12.22 pm and reconvened 12.50 pm.
CARRIED
Crs Lee, Raffills and Mr David Taipari were not present.
Minutes

Page 5

Auckland Plan Committee

12 February 2013

10

Managing Risks Associated with the Outdoor use of Genetically Modified Organisms
(GMO): report on the ICWP Draft Proposed Plan Provisions and Section 32 Evaluation
Mark Bishop, Team Leader Land Management and Nola Rundle, Specialist Land spoke to
their presentation, a copy of which has been placed on the minute book file and can be
viewed at the Auckland Council website.
Cr Stewart exited the meeting at 12:52 pm.
Member Taipari returned to the meeting at 12:57 pm.
Cr Lee returned to the meeting at 1:06 pm.
Cr Fletcher exited the meeting at 1:06 pm.
Cr Raffills returned to the meeting at 01:14 pm.
Cr Anae exited the meeting at 1:17 pm.
MOVED by Cr GS Wood, seconded Cr P Webster:
That the Auckland Plan Committee:
a)

Notes the various management approaches to Genetically Modified Organisms (GMOs)

of the legacy councils.

b)

Notes the work of the Inter Council Working Party (ICWP) on Genetically Modified
Organisms (GMOs) Risk Evaluation and Management Options.

c)

Confirms their position on what, if any, management approach to Genetically Modified

Organisms (GMOs) should be included in the March draft of the Unitary Plan, based on
any recommendations of the Unitary Plan Political Working Party.
Option 2)

Insert objective in Draft Unitary Plan insert GMO-related similar

objective from the Draft Auckland Regional Policy Statement into Draft
Unitary Plan:
Genetically modified organisms do not adversely affect the social,
cultural, economic and environmental well-being of people in the
Auckland region.

d)

Receives the report of the Inter Council Working Party (ICWP) on Genetically Modified
Organisms (GMOs) Risk Evaluation and Management Options.

Cr W Walker moved an amendment, seconded by Cr S Coney:

c)

Option 3)

Insert GMO related provisions as per ICWP draft proposed plan

change Insert provisions verbatim into Draft Unitary Plan.

A division was called for, voting on which was as follows:

Against:
For:
Councillors: Cameron Brewer
Councillors: Michael Goudie
Cathy Casey
Ann Hartley
Sandra Coney
Des Morrison
Penny Hulse
Calum Penrose
Mike Lee
Noelene Raffills
Richard Northey
David Taipari
Sir John Walker
Patience Te Ao
Wayne Walker
Penny Webster
George Wood
The division was declared LOST by 8 votes to 9.

Minutes

Page 6

The Chairperson put the substantive motion:

Resolution number APC/2013/5
MOVED by Cr GS Wood, seconded Cr P Webster:
That the Auckland Plan Committee:
a)

Notes the various management approaches to Genetically Modified Organisms

(GMOs) of the legacy councils.

b)

Notes the work of the Inter Council Working Party (ICWP) on Genetically Modified
Organisms (GMOs) Risk Evaluation and Management Options.

c)

Confirms that the position on the management approach to Genetically Modified

Organisms (GMOs),(to be included in the March draft of the Unitary Plan, based
on recommendations of the Unitary Plan Political Working Party) is as follows:
Option 2)

Insert objective in Draft Unitary Plan insert GMO-related similar

objective from the Draft Auckland Regional Policy Statement into
Draft Unitary Plan.
Genetically modified organisms do not adversely affect the
social, cultural, economic and environmental well-being of people
in the Auckland region.

d)

Receives the report of the Inter Council Working Party (ICWP) on Genetically
Modified Organisms (GMOs) Risk Evaluation and Management Options.
CARRIED

[Secretarial Note:

11

Pursuant to Standing Order to 3.15.5, Cr Coney requested her vote

against the motion be recorded.]

Scope and process for second Auckland Plan Annual Implementation Update (AIU)
Cr Casey exited the meeting at 1:38 pm.
Robert Simpson, Principal Policy Analyst, Strategic Planning and Megan Tyler, Manager
Central & Islands, spoke to their presentation, a copy of which has been placed on the
minute book file and can be viewed at the Auckland Council website.
Resolution number APC/2013/6
MOVED by Deputy Mayor PA Hulse, seconded Cr DM Morrison:
That the Auckland Plan Committee:

Minutes

a)

Receives the Scope and process for second Auckland Plan Annual
Implementation Update (AIU) report.

b)

Notes work in progress on the format of the Annual Implementation Update

(Attachment A).

c)

Notes and accepts the proposed chapter-by-chapter scope for the second
Annual Implementation Update.

d)

Notes progress on the various processes being undertaken internally and

externally with stakeholders to support Auckland Plan Implementation and
ensure comprehensive and consistent reporting through the Annual
Implementation Update.

e)

Resolves to receive the Annual Implementation Update in September of each

financial year.
CARRIED

Page 7

Auckland Plan Committee

12 February 2013

12

Auckland Council's response to the Productivity Commission's Draft Report on Local

Government Regulation
Craig Glover, Principal Policy Analyst and Denise OShaugnessy, Team leader Strategic
Plan spoke to their presentation, a copy of which has been placed on the minute book file
and can be viewed at the Auckland Council website.
Resolution number APC/2013/7
MOVED by Cr P Webster, seconded Member DE Taipari:
That the Auckland Plan Committee:
a)

Notes that many of the findings in the Towards better local regulation draft
report are consistent with the key messages raised by Auckland Council in its
2012 submission to the Productivity Commission.

b)

Delegates the Chair and Deputy Chair, to work with the Independent Maori
Statutory Board (IMSB) and with officers to draft and approve Auckland
Councils submission to the Productivity Commission.

c)

Agrees that an offer be made for representatives of Auckland Council to meet

with the Commission to discuss any issues arising from its report, the
Councils submission and any assistance the Council can provide in the
additional work the Commission is undertaking.

d)

Endorses the suggested approach to the submission is as follows:

i)

Minutes

supports the Commissions high level messages in respect of:

the need for more clarity around the respective roles of central and
local government in regulation making;

the impact of central government processes on the quality of local

regulation;

the lack of evidence to support the view that the passing of the 2002
Local Government Act led to an explosion of local regulation;

the fact that almost all local regulation is required or empowered by

statute law (i.e. driven by central government); and

the need for improvements to regulatory monitoring, enforcement and

assessment systems.

ii)

Supports the proposed allocation framework, but suggests that it be

modified to be more explicit about Aucklands unique regulatory needs
and scale.

iii)

Supports the Commissions findings on the relationship between central

and local government in respect of regulatory functions and reiterate the
relevant positions taken in the 2012 submission.

iv)

Supports the Commissions findings that regulation can legitimately vary

between jurisdictions to reflect local preferences but suggests that the
Commission be more explicit in recognising the need for nationally set
regulation to take into account Aucklands unique situation.

v)

Suggests the Commission expand its explanation as to why national

regulations are sometimes applied inconsistently to include the quality of
the drafting and consultation processes.

vi)

Supports the Commissions undertaking to conduct further research into

the issue of unfunded mandates.

Page 8

vii)

Advocates for increased provision for the use of infringement notices as a

key enforcement mechanism and support the Commissions intention to
undertake further research in this regard.

viii) Supports the Commissions findings that a more balanced approach to

regulatory performance assessment is required.
ix)

Suggests to the Commission that more work is required to fully

understand the costs, benefits and other implications of any change to the
Environment Court RMA appeals process before any policy position can
be recommended.
CARRIED

13

Auckland Design Manual

Cr Quax entered the meeting at 1:58 pm.
Resolution number APC/2013/8
MOVED by Deputy Mayor PA Hulse, seconded Cr NM Raffills:
That the Auckland Plan Committee:
a)

Approves the structure of the Auckland Design Manual as outlined in

Attachments 1-3.

b)

Notes that the Auckland Design Manual will be a non-statutory web-based

document.

c)

Notes that the first release of the Auckland Design Manual will be reported to
the committee later in 2013 for approval.

d)

Notes that delegation for the on-going updating of the Auckland Design Manual
will be reported for approval to the committee at the time of the first release of
the Auckland Design Manual.
CARRIED

14

New Zealand Productivity Commission Report on International Freight Transport

Services Inquiry
Cr Webster exited the meeting at 2:00 pm.
Cr Coney exited the meeting at 2:00 pm.
Resolution number APC/2013/9
MOVED by Member DE Taipari, seconded Cr DM Morrison:
That the Auckland Plan Committee:
a)

Receives the New Zealand Productivity Commission Report on International

Freight Transport Services Inquiry report.

b)

Requests that a copy of this report be forwarded to all Local Boards for
information.
CARRIED

15

Consideration of Extraordinary Items

There was no consideration of extraordinary items.
2.08 pm

Minutes

The Chairperson thanked Members for their

attendance and attention to business and declared the
meeting closed.
Page 9

Auckland Plan Committee

12 February 2013

CONFIRMED AS A TRUE AND CORRECT RECORD

AT A MEETING OF THE AUCKLAND PLAN
COMMITTEE HELD ON
DATE:.........................................................................

CHAIRPERSON:.........................................................

Minutes

Page 10

'Up to 18,000 properties affected by taniwha tax'

CHRIS HUTCHING WEDNESDAY APRIL 15, 2015

NZ Taxpayers' Union executive director Jordan Williams

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Up to 18,000 properties may be affected by Auckland Councils taniwha tax,

according to the Taxpayers Union.
It is holding a forum on level 9 of the Crombie Lockwood tower at 191 Queen
St at 10.30am today to publicise a report about the "tax."(See report attached
below)
It is enacted via the mana whenua provisions in the Auckland Unitary Plan

and is now enforceable.

It requires property owners to obtain a report from iwi about any possible
effect of development on sacred sites.
The Taxpayers Union describes it as a variable and unpredictable capital tax,
collected when someone wants to change their property use, creating
uncertainty.
Despite the National Partys claims to uphold property rights it has put in
some of the worst provisions. Section 14 (4) of the Heritage New Zealand
Pouhere Taonga Act 2014 means the owner of Wellingtons Harcourts
building cannot claim for the effective confiscation of the value of his
Lambton Quay property by prohibitions on demolishing the earthquake
prone facade, which is widely accepted to be a danger to the public.
That is despite the owners intention to rebuild the historic facade with a
safe, but visually identical, structure, Taxpayers Union spokesman Jordan
Williams says.
"Most affected property owners will not become aware of the provisions until
they suddenly find there is a site on or near their land, or they are told they
may need to get a cultural impact assessment when applying for resource
consent.
Worse, the council isnt even sure that some of the 3600 sites deemed of value
even exist."
The briefing paper quotes extensive criticisms of the provisions made on
behalf of some of New Zealands largest corporates, including Vodafone,
Spark, Chorus, Transpower, Vector and Watercare.
RAW DATA:Auckland 'Taniwha Tax' briefing paper(PDFhere)

1 COMMENT & QUESTION

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#1 by South Aucklander 11 months ago

Jordan, with all due respect, did you not read Article XXII of the Treaty of Waitangi which states:
Article XXII (a) "Once established, Local Authorities shall consult with Mana Whenua at all times when
any of the Land owning gentry shall do anything on their lawfully owned land."
Article XXII (b) "To avoid doubt, this Article does not extend to Mana Whenua"
Article XXII (c) "To avoid doubt, this Article exists to provide an income stream to Mana Whenua"
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