Fast-track timeframes take iwi consultations ‘from really difficult to impossible’

Iwi representatives are calling out rushed timelines and the Crown’s record of “disingenuous” consultation as yet another change is made to the Government’s obligations to iwi settlement land under the fast-track bill.
Rushed timelines have been a hallmark of the fast-track bill, as noted by public submitters, consulted parties and even the regulatory impact statements commissioned by Cabinet and written by ministry officials. 
This is especially true in the case of Treaty settlement consultations, an area of the fast-track that has had three approaches during the bill’s development – each posing a different frustration to landowners, and each constrained by timeframes.
Beyond timeframe concerns, Professor of Politics and Māori Studies Maria Bargh said all tabled approaches left “wriggle room” for the Crown, as its history of honouring promises had a low benchmark. 
Meanwhile, representatives from Ngāti Toa said they were keen on developing settlement lands, but only on their terms. Unwelcome developers, they declared, would be unable to set foot on tribal lands, no matter what the permit says.
As Newsroom revealed last week, Treaty settlement lands were off limits under the draft fast-track proposal that NZ First brought to coalition negotiations. This part of the bill was watered down in the Government’s first version of the bill unveiled in March. However, recent proposed amendments put more decision-making power back in iwi hands. That is, if the Crown is prepared to walk the walk.
The November draft, presented to potential coalition partners by NZ First during post-election talks, had Treaty lands strictly off-limits for development without the written permission of the landowner. 
When the Government’s bill was presented by Minister for RMA Reform Chris Bishop in March, this had been changed to an expectation that “all persons exercising functions under the bill must act in a manner that is consistent with the obligations arising under existing Treaty of Waitangi settlements”. 
Under that version of the fast-track, three ministers were due to have final decision-making powers on projects. If a project had met the stated Treaty obligations and was voted down by an expert panel, the ministers could green-light it anyway. 
But in August, Bishop announced he had recommended changes to the bill, which would mean final power would sit with the expert panel. In the case of a proposed project on settlement land, an iwi representative must be on that panel.
Bishop told Newsroom ministers and officials “took a broad range of advice, perspectives and feedback into account” for the Government’s first fast-track draft, and then again for the suggested revisions announced in August. The bill is still before the Environment Committee, which Bishop said is due to report back next month.
Professor Bargh said relying on a consultation process to uphold Treaty obligations set a low benchmark. She said both approaches – those in the original put forward by NZ First after the election and the current Government position – left “wriggle room” for the Crown.
Though the initial proposal that NZ First brought to coalition talks appeared to have stronger protections, Bargh said she “wouldn’t want to give New Zealand First any credit for trying to protect Treaty settlement land”.
In the initial proposal from NZ First, settlement land may well have been off the table, but further amendments to the Public Works Act detailed later in the draft bill offered a potential workaround by seeking to remove pathways by which an entity could challenge the acquisition of land by the Crown.
Regardless of the potential implications of that change, this approach was dropped in favour of the “obligations arising” approach – one that Bargh said was “still pretty crappy”.
“If we look at the way in which the Crown conduct themselves ‘in a manner consistent with their obligations’ under Treaty settlements at the moment, it leaves a lot to be desired,” Bargh said. She pointed to unfulfilled promises such as Te Arawa River Iwi Trust’s energy accords and the regular meetings they’re meant to have with officials from the Ministry of Business, Innovation and Employment: “Those things aren’t upheld at the moment.” 
When it came to mining, Bargh said iwi’s rangatiratanga over minerals had not been maintained. 
In the case of mining projects – four of which were slated for pre-approval in NZ First’s initial fast-track proposal – “the impacts are going to extend much wider, as we just saw in the Karangahake gorge.”
All up, if ‘acting in a manner consistent with their obligations’ was what Cabinet was benchmarking, said Bargh, “that’s not a very high benchmark”.
In Bargh’s experience, the consultation process itself, which would be required should there be an application for a project on settlement land, had not always been encouraging.  
She said areas iwi had flagged as inappropriate for development during the consultation process had been greenlit anyway. “Whether it’s a wāhi tapu, whether it’s an urupā, it doesn’t actually matter what it is that you say is special about that area – they won’t exclude it from the permit offer.”
“The consultation process feels like it’s disingenuous, like you are not going to be able to materially impact the outcome anyway. So there’s that, to begin with. And then the timeframes are quite short.”
Meanwhile, iwi representatives from Ngāti Toa said they were keen on developing settlement lands, but only on their terms.
Ngāti Toa representatives also said they were intent on making sure unwelcome developers wouldn’t be able to set foot on their land.
Helmut Modlik, tumu whakarae chief executive of Te Rūnanga o Toa Rangatira, said “it’s clear to everybody that the intent of the bill is spelled out in the first four letters of the jolly thing: F-A-S-T, kia ora!” 
Modlik said everything in the bill’s journey had been defined by expediency. He said of Cabinet: “To be frank, they’re acting in an unprincipled way.” 
Modlik said the Government’s actions ran afoul of existing obligations “and even just ethical behaviour” when it came to existing norms in his community.
Modlik was not against development of settlement lands; in fact, in Ngāti Toa’s case, some of the whenua that was negotiated as part of a settlement was chosen because there was an explicit intention to develop it. The contention stemmed from who was making the decision to develop it.
“We went through this protracted process, in our case for nearly 30 years, [which] ultimately resulted in a negotiated and solemnly apologised for breach and settlement around whenua,” said Modlik. 
To then have “some officials come along and make a determination that our land, our rights, can be breached again because there’s now a contemporary law that says so, and our only recourse is to go to the High Court? Yeah, we would find that an egregious outcome.”
Rawiri Faulkner, Ngāti Toa’s lead executive in taiao-related matters, said the iwi “would not want to see a blanket approach to lands being off limits, because we may have aspirations for that land ourselves”. But mere consultation was not enough.
Faulkner said Ngāti Toa had positioned itself as “beyond an engagement or a consultation process”. 
“As partners with the Crown, we expect to be able to have a more nuanced and mature conversation around what is best for us, best for community, best for environment,” he said.
But having those conversations had been difficult under the tight timeframes demanded by the fast-track. As Bargh said, the consultation process could feel misguided already, so condensing the timeframe to consider options did not add value to the process.
The timeframes to get a good technical assessment on potential adverse effects had always been unrealistic, Faulkner said. “The fast-track just makes it impossible. So it goes from really difficult to impossible.” 
Modlik said Ngāti Toa made its position clear when they fronted up at Parliament. But he said the iwi also sent a message to Cabinet that “it is our prerogative and our intention, regardless of what they decide to do: we will not allow anybody to come into our tribal boundaries, especially at our home base here, and do anything. Regardless of whatever they think they’ve said and is permitted.”