General policy statement
Overview
This Bill—
gives effect to a deed of agreement between ngā hapū o Ngāti Porou and the Crown in relation to ngā rohe moana o ngā hapū o Ngāti Porou; and
contributes to the legal expression, protection, and recognition of the continued exercise of mana by ngā hapū o Ngāti Porou in relation to ngā rohe moana o ngā hapū o Ngāti Porou.
Background
At a series of hui-a-iwi commencing in August 2003, and at further hui with various of the Ngāti Porou marae, hapū, and tāura here, support was given for Te Rūnanga o Ngāti Porou to enter into discussions with the Crown to ensure that the foreshore and seabed rights of ngā hapū o Ngāti Porou would continue to be recognised and protected.
Te Rūnanga o Ngāti Porou, on behalf of ngā hapū o Ngāti Porou, commenced discussions with the Crown. On 1 November 2004 the parties entered into terms of negotiation that set out the scope, objectives, and procedures for future negotiations in order for an agreement on the foreshore and seabed rights of ngā hapū o Ngāti Porou to be reached.
Following this, the Foreshore and Seabed Act 2004 was enacted. The object of that Act is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enables the protection by the Crown of the public foreshore and seabed on behalf of the people of New Zealand, including the protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed.
In December 2005 and January 2006, Te Rūnanga o Ngāti Porou conducted a series of mandating hui to determine which hapū of Ngāti Porou still supported the negotiations with the Crown and which no longer supported the negotiations. The result of this process was that a large majority of hapū expressed clear and continued support for the negotiations. However, a number of hapū did not support the negotiations, were unclear in their position, or deferred from making a decision. As a consequence of the further mandating process, the negotiations continued, but only for the territorial customary rights claims of those hapū that had expressed clear support for the negotiations.
On 5 February 2008, the Crown and Te Rūnanga o Ngāti Porou (on behalf of certain hapū of Ngāti Porou) signed a heads of agreement. The heads of agreement comprised 2 parts—
a letter of understanding, signed by the Attorney-General and the chairman of Te Rūnanga o Ngāti Porou that noted the agreements reached to date and recorded the next steps to be taken before the deed of agreement is signed; and
the draft deed of agreement outlining the nature, scope, and extent of the instruments to be provided to those hapū of Ngāti Porou that choose to ratify the final deed of agreement.
On 7 August 2008, a deed of agreement was initialled by the principal negotiator for Te Rūnanga o Ngāti Porou (on behalf of certain hapū of Ngāti Porou) and the Attorney-General (on behalf of himself and the Minister exercising the functions of the Minister of Māori Affairs). Te Rūnanga o Ngāti Porou then commenced the process of seeking ratification of the deed of agreement by ngā hapū o Ngāti Porou.
The ratification results have now been assessed. The deed of agreement is to be signed by the parties.
Purpose of Bill
The purpose of the Bill is to give effect to the deed of agreement between ngā hapū o Ngāti Porou and the Crown in relation to ngā rohe moana o ngā hapū o Ngāti Porou. This Bill will contribute to the legal expression, protection, and recognition of the continued exercise of mana by ngā hapū o Ngāti Porou in relation to ngā rohe moana o ngā hapū o Ngāti Porou in a manner consistent with section 3 of the Foreshore and Seabed Act 2004.
The deed of agreement contains various recognition instruments. Some of those instruments require legislation to be given full effect, particularly those that impact on other legislation such as the Conservation Act 1987, the Resource Management Act 1991, and the Fisheries Act 1996.
The Bill seeks to achieve the following outcomes:
to recognise the unbroken, inalienable, and enduring mana of the hapū of Ngāti Porou in relation to ngā rohe moana o ngā hapū o Ngāti Porou, which is held and exercised as a collective right; and
to provide legal mechanisms that support the expression and protection of the mana of the hapū of Ngāti Porou generally and in those specific areas where territorial customary rights are recognised; and
to recognise that the Crown has a responsibility for public access in, on, and over the public foreshore and seabed, and a role in regulating the public foreshore and seabed; and
to provide certainty about the use and administration of ngā rohe moana o ngā hapū o Ngāti Porou.
Scope of the deed of agreement
The public foreshore and seabed (as defined in section 5 of the Foreshore and Seabed Act 2004) means the marine area that is bounded, on the landward side, by the line of mean high water springs, and on the seaward side, by the 12 nautical mile limit and excludes any land that is, for the time being, subject to a specified freehold interest (as defined in the same section).
The seaward boundary of ngā rohe moana o ngā hapū o Ngāti Porou is the 12 nautical mile limit.
Ngā rohe moana o ngā hapū o Ngāti Porou includes the public foreshore and seabed in the rohe of the hapū that ratified the deed of agreement.
In this Bill, ngā hapū o Ngāti Porou is defined in clause 7 as the hapū of Ngāti Porou who have ratified the deed of agreement. The deed of agreement will bind the Crown and those hapū of Ngāti Porou who have chosen to ratify it.
Within ngā rohe moana o ngā hapū o Ngāti Porou are territorial customary rights areas that have been agreed between Te Rūnanga o Ngāti Porou (on behalf of certain hapū of Ngāti Porou) and the Crown under section 96 of the Foreshore and Seabed Act 2004. These areas are subject to confirmation by the High Court. If confirmed by the High Court, particular recognition instruments will apply in these areas. The seaward boundary of the territorial customary rights areas is 3 nautical miles.
Main elements of the Bill
This Bill provides for the instruments and mechanisms that have been negotiated and agreed between ngā hapū o Ngāti Porou and the Crown that require legislation to have effect. The instruments and mechanisms relate to 2 types of coverage areas. The following 7 instruments and mechanisms relate to ngā rohe moana o ngā hapū o Ngāti Porou:
statutory overlay (subpart 1 of Part 2 of the Bill): this instrument ensures that a map of ngā rohe moana o ngā hapū o Ngāti Porou is attached to key public documents. It is also designed to provide for the effective participation of ngā hapū o Ngāti Porou in the processes relating to resource consent applications and applications under the Historic Places Act 1993:
environmental covenant instrument (subpart 2 of Part 2 of the Bill): this instrument provides for ngā hapū o Ngāti Porou to set out the issues, objectives, policies, and rules and other methods relating to the promotion of their world view, including in relation to the promotion of sustainable management of ngā rohe o ngā hapū o Ngāti Porou, and the protection of the cultural and spiritual identity of ngā hapū o Ngāti Porou. To the extent that the environmental covenant relates to resource management issues, Gisborne District Council will be required to review key public documents (such as its regional coastal plan) the next time those documents are reviewed under the Resource Management Act 1991 to ensure that those documents take the environmental covenant into account:
protected customary activities (subpart 3 of Part 2 of the Bill): this instrument will provide a process by which ngā hapū o Ngāti Porou may obtain legal protection to ensure they are able to continue their ongoing customary activities, uses, or practices within ngā rohe moana o ngā hapū o Ngāti Porou without the need for resource consent:
wāhi tapu (subpart 4 of Part 2 of the Bill): this instrument will enable ngā hapū o Ngāti Porou to identify within ngā rohe moana o ngā hapū o Ngāti Porou wāhi tapu and wāhi tapu areas and also provide for prohibitions or restrictions on persons accessing the identified wāhi tapu and wāhi tapu areas:
fisheries mechanism (subpart 5 of Part 2 of the Bill): this mechanism recognises the special relationship that ngā hapū o Ngāti Porou have with the fishing grounds within ngā rohe moana o ngā hapū o Ngāti Porou. This mechanism will allow for the making of new customary fishing regulations to cover ngā rohe moana o ngā hapū o Ngāti Porou. These regulations will enable ngā hapū o Ngāti Porou to manage customary fishing within ngā rohe moana o ngā hapū o Ngāti Porou:
conservation mechanism (subpart 6 of Part 2 of the Bill): this mechanism will facilitate the effective participation of ngā hapū o Ngāti Porou in the processes related to establishing or extending marine reserves, establishing or extending conservation protected areas, and granting concessions. This mechanism also facilitates the effective participation of ngā hapū o Ngāti Porou in the processes related to establishing or extending marine mammal sanctuaries, granting authorisations in relation to wildlife matter and permits in relation to marine mammal matter, and making decisions on the management of stranded marine mammals and applications for marine mammal watching permits:
place names (subpart 7 of Part 2 of the Bill): this instrument will provide for the alteration of some existing place names within ngā rohe moana o ngā hapū o Ngāti Porou to names chosen by ngā hapū o Ngāti Porou:
The following instruments and mechanisms relate to the territorial customary right areas only:
permission rights (subpart 9 of Part 2 of the Bill): this instrument provides territorial customary rights hapū with the right to give, or refuse to give, their permission to applications for resource consent and requests made by persons, in response to a regional council invitation under the Resource Management Act 1991, to change a regional coastal plan to establish an aquaculture management area:
extended fisheries mechanism (subpart 5 of Part 2 of the Bill): this mechanism will extend the fisheries mechanism by allowing ngā hapū o Ngāti Porou to propose bylaws restricting or prohibiting fishing for sustainable utilisation or cultural reasons:
extended environmental covenant mechanism (subpart 2 of Part 2 of the Bill): this mechanism extends the environmental covenant by requiring Gisborne District Council to review its key public documents (that cover or directly affect a territorial customary rights area) to ensure that it recognises and provides for the issues, objectives, policies, and rules or methods set out in the environmental covenant to the extent that the environmental covenant relates to resource management issues:
extended conservation mechanism (subpart 6 of Part 2 of the Bill): this mechanism extends the conservation mechanism by allowing the territorial rights hapū to have the right to give, or refuse to give, their consent to certain proposals or applications where they relate to the territorial customary rights area, including applications to establish or extend marine reserves under the Marine Reserves Act 1971, proposals to establish or extend conservation protected areas, applications for concessions, proposals to establish or extend marine mammal sanctuaries, and applications for marine mammal watching permits.
Clause by clause analysis
Clause 1 is the Title clause.
Clause 2 provides that the Bill comes into force by Order in Council.
Part 1
Preliminary provisions, interpretation, and application
Clause 3 sets out the purpose of the Bill.
Clause 4 provides that the Bill binds the Crown.
Clause 5 requires the provisions of the Bill to be interpreted in a manner that best furthers the agreements expressed in the deed of agreement.
Clause 6 is the general interpretation clause.
Clause 7 defines ngā hapū o Ngāti Porou for the purposes of the Bill.
Clause 8 defines ngā rohe moana o ngā hapū o Ngāti Porou for the purposes of the Bill.
Clause 9 defines accommodated matter. These are rights, activities, structures, and works listed in Schedule 1 that under clause 11 are not affected by the Bill.
Clause 10 provides that the provisions of the Bill in relation to TCR areas apply only if an Order in Council under clause 107 has been made for the area. The area must only be an area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou in relation to which the the High Court has confirmed that the requirements of sections 32 to 34 of the Foreshore and Seabed Act 2004 are satisfied in respect of a particular hāpu of Ngāti Porou (defined in clause 6 as the TCR hapū).
Clause 11 sets out the application of the Bill in respect of accommodated matters.
Part 2
Implementation of deed of agreement
Subpart 1—Special status of ngā hapū o Ngāti Porou to be provided for in certain statutory documents and processes
Clause 12 requires a map of ngā rohe moana o ngā hapū o Ngāti Porou to be attached to certain planning documents (defined in this clause and clause 6 as key public documents) for the purposes of public notice.
Clause 13 empowers the relevant hapū to be a party to any proceedings before the Environment Court for an application for a resource consent for an activity within, adjacent to, or impacting directly on the rohe of the hapū. The clause does this by treating the hapū as a person who has an interest in the proceedings concerned that is greater than the public generally for the purposes of section 274(1) of the Resource Management Act 1991.
Clause 14 requires the Gisborne District Council (GDC), the district and regional council with jurisdiction over ngā rohe moana o ngā hapū o Ngāti Porou, to provide a copy of resource consent applications to relevant hapū in certain circumstances.
Clause 15 provides certain rights to ngā hapū o Ngāti Porou if the Minister for the Environment and the Minister of Conservation make a direction under section 141B(1)(a) of the Resource Management Act 1991 to refer a matter that is part of a proposal of national significance within ngā rohe moana o ngā hapū o Ngāti Porou to a board of inquiry under that Act.
Clause 16 requires that for the purposes of sections 14(6)(a) and 20(1) and (6)(d) of the Historic Places Act 1993, ngā hapū o Ngāti Porou must be treated as persons directly affected by a decision of, or the exercise of a power by, the New Zealand Historic Places Trust if the decision, or the exercise of the power, relates to ngā rohe moana o ngā hapū o Ngāti Porou.
Subpart 2—Ngā rohe moana o ngā hapū o Ngāti Porou environmental covenant
Clause 17 empowers ngā hapū o Ngāti Porou to develop and sign an environmental covenant setting out the issues, objectives, policies, and rules or other methods of ngā hapū o Ngāti Porou in relation to promoting the sustainable management of the natural and physical resources of ngā rohe moana o ngā hapū o Ngāti Porou and protecting the integrity of ngā hapū o Ngāti Porou, including their cultural and spiritual identity with the rohe.
Clause 18 requires GDC to ensure that each of its key public documents (as defined in clause 6) that cover or directly affect ngā rohe moana o ngā hapū o Ngāti Porou takes into account the matters in the environmental covenant that relate to resource management issues and, if the document covers or directly affects a TCR area, recognises and provides for the matters in the covenant that relate to resource management issues.
Clause 19 requires ngā hapū o Ngāti Porou to provide GDC with a copy of the covenant once signed and each time it is amended.
Clause 20 requires GDC to review each of its key public documents that cover or directly affect ngā rohe moana o ngā hapū o Ngāti Porou for compliance with the requirements of clause 18. The clause sets out the procedure for the review and the transitional arrangements that are required until the review of each document is completed.
Clause 21 sets out the actions GDC must take after a review.
Clause 22 authorises ngā hapū o Ngāti Porou to require GDC to reconsider its decision on a review if the decision is not to make any changes to a key public document (to account for the environmental covenant in the manner required under clause 18).
Clauses 23 to 25 deal with the reconsideration process.
Clause 26 requires ngā hapū o Ngāti Porou to periodically review the environmental covenant to ensure it accurately provids for the matters in clause 18.
Clause 27 authorises ngā hapū o Ngāti Porou to amend the environmental covenant after carrying out a review by signing an amended version.
Clauses 28, 29, and 30 set out the effect that the environmental covenant is to have on other resource management documents, decisions under the Historic Places Act 1993, and on GDC decision-making processes generally.
Subpart 3—Protected customary activities within ngā rohe moana o ngā hapū o Ngāti Porou
Clauses 31 and 32 provides a process (agreement between ngā hapū o Ngāti Porou, the Attorney-General, and the Minister of Māori Affairs) by which an activity within ngā rohe moana o ngā hapū o Ngāti Porou may be recognised as a protected customary activity.
Clause 33 authorises a hapū that may carry on, exercise, or follow a protected customary activity to determine which member of the hapū is able to undertake the activity and at which locations.
Clause 34 authorises the carrying out, exercise, or following of a protected customary activity despite certain matters in the Resource Management Act 1991 or a district plan.
Clauses 35, 36, and 37 empower, and set out the process for, the Minister of Conservation to make determinations on whether a protected customary activity has, or may have, a significant adverse effect on the environment.
Clause 38 requires the Minister of Conservation and the hapū concerned to agree on controls for a protected customary activity that the Minister has determined has, or may have, a significant adverse effect on the environment.
Clause 39 requires a copy of an agreement on controls to be provided to certain persons.
Clauses 40, 41, and 42 prohibit a consent authority from granting an application for a resource consent for an activity that GDC has determined under clause 41 will, or is likely to, have a significant adverse effect on a protected customary activity unless the activity is an accommodated matter or the relevant hapū approves in writing to the activity under clause 42.Clause 41 sets out the process by which GDC determines whether a proposed activity will, or is likely to, have a significant adverse effect on a protected customary activity.
Subpart 4—Protection for wāhi tapu and wāhi tapu areas within ngā rohe moana o ngā hapū o Ngāti Porou
Clauses 44 to 53 provide for the protection of wāhi tapu and wāhi tapu areas within ngā rohe moana o ngā hapū o Ngāti Porou. Under clause 52 a person who intentionally fails to comply with a wāhi tapu or wāhi tapu area prohibition or restriction commits an offence punishable on summary conviction by a fine not exceeding $5,000. Clause 53 provides for the appointment of wardens in accordance with regulations made under clause 120 to promote compliance with wāhi tapu or wāhi tapu area prohibitions and restrictions.
Subpart 5—Customary fishing practices within ngā rohe moana o ngā hapū o Ngāti Porou
Clause 54 requires the Minister of Fisheries to recommend to the Governor-General that regulations be made for the purposes of recognising and providing for customary food gathering by ngā hapū o Ngāti Porou within ngā rohe moana o ngā hapū o Ngāti Porou and recognising and providing for the special relationship between TCR hapū and places of customary food gathering in their TCR areas.
Clause 55 requires fisheries management plans (as defined in clause 6) to be recognised and provided for in certain circumstances when a person is acting under the Fisheries Act 1996.
Clause 56 sets out the relationship between regulations made for the purposes of clause 56 and the Fisheries (Amateur Fishing) Regulations 1986 and the Fisheries (Kaimoana Customary Fishing) Regulations 1998.
Subpart 6—Conservation mechanisms within ngā rohe moana o ngā hapū o Ngāti Porou
This subpart sets out requirements for certain departments and other bodies of the Crown or persons acting for the Crown in respect of ngā hapū o Ngāti Porou in relation to the following matters:
marine reserve applications for areas within, adjacent to, or directly impacting on ngā rohe moana o ngā hapū o Ngāti Porou:
establishment or extension of marine reserves within, adjacent to, or directly impacting on ngā rohe moana o ngā hapū o Ngāti Porou:
proposals to establish or extend conservation protected areas (as defined in clause 6) within, adjacent to, or directly impacting onngā rohe moana o ngā hapū o Ngāti Porou:
applications for a concession (as defined in clause 6) to undertake activities within conservation protected areas within ngā rohe moana o ngā hapū o Ngāti Porou:
proposals for marine mammal sanctuaries within ngā rohe moana o ngā hapū o Ngāti Porou:
wildlife matter applications and marine mammal matter applications (as those terms are defined in clause 6):
decisions concerning stranded marine mammals:
decisions on applications for marine mammal watching permits:
possession of wildlife matter or marine mammal matter:
certain applications and proposals in relation to TCR areas.
Subpart 7—Alteration and assignment of place names within ngā rohe moana o ngā hapū o Ngāti Porou
This subpart provides for matters relating to the alteration in clause 78 of the names of 2 places within ngā rohe moana o ngā hapū o Ngāti Porou.
Subpart 8—Relationship instruments for ngā rohe moana o ngā hapū o Ngāti Porou
This subpart deals with the relationship instruments that ngā hapū o Ngāti Porou have entered into with certain Ministers. These are binding agreements that set out how the relationship between ngā hapū o Ngāti Porou and the Ministers (and their departments) will be conducted.
Subpart 9—TCR hapū permission rights
This subpart sets out how resource consent applications and aquaculture management area requests that relate to a proposed activity in a TCR area are to be dealt with by GDC and what rights a TCR hapū has in relation to those applications and requests.
Part 3
Jurisdictional matters
Subpart 1—Establishment of TCR areas
Clauses 104 to 107 set out the process by which an area within ngā rohe moana o ngā hapū o Ngāti Porou may be established as a TCR area. Certain areas to which these clauses apply are set out in Schedule 2 (including indicative maps).
Subpart 2—Removal of jurisdiction of High Court, Māori Land Court, and other judicial bodies
Clauses 108 and 109 remove the jurisdiction of the High Court, the Māori Land, and other judicial bodies in respect of matters covered by this Bill.
Part 4
Miscellaneous provisions
Clauses 110 to 112 relate to the management arrangements established by ngā hapū o Ngāti Porou to exercise their rights and responsibilities and perform their obligations under this Bill and the deed of agreement.
Clause 113 sets out limitations on the effect of the Bill.
Clause 114 prohibits GDC from imposing a coastal occupation charge under section 64A of the Resource Management Act 1991 on certain activities authorised by the Bill.
Clause 115 deals with the rule against perpetuities.
Clauses 116, 117, and 119 sets out requirements in relation to availability of access to the deed of agreement and certain other agreements and documents.
Clause 118 requires the public foreshore and seabed register referred to in section 92 of the Foreshore and Seabed Act 2004 to keep records of the documents described in clause 117(a) to (c).
Clause 120 authorises the making of regulations in relation to wardens appointed under clause 53.
Clause 121 and Schedule 3 relate to consequential amendments to other enactments.
Regulatory impact statement
Executive summary
This regulatory impact statement relates to the recognition instruments that have been negotiated with Te Rūnanga o Ngāti Porou (on behalf of certain hapū of Ngāti Porou). The recognition instruments seek to provide for effective participation and decision making in relation to the public foreshore and seabed in the agreement area of the hapū.
Adequacy statement
The Ministry of Justice confirms that the principles of the Code of Regulatory Practice and the regulatory impact analysis requirements, including consultation requirements, have been complied with in developing the preferred option. The Ministry considers that the statement provides an accurate summary of the regulatory impacts associated with giving effect to the deed of agreement with the hapū of Ngāti Porou.
Status quo and problem
The Foreshore and Seabed Act was enacted in 2004. Under that Act, the full legal and beneficial ownership of the public foreshore and seabed was vested in the Crown. Under the Act, the Attorney-General and the Minister of Māori Affairs may enter into an agreement with a group to recognise that, but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown, the group (or members of that group) would have had a claim for territorial customary rights over a specific area of the public foreshore and seabed.
Discussions with Te Rūnanga o Ngāti Porou (on behalf of hapū of Ngāti Porou) commenced in late 2003 concerning the foreshore and seabed rights of the hapū of Ngāti Porou. On 5 February 2008 the Crown and Te Rūnanga o Ngāti Porou (on behalf of certain hapū of Ngāti Porou) signed a heads of agreement.
The heads of agreement recorded the agreements reached to date and the next steps to reach a final deed of agreement. The heads of agreement incorporated a draft deed of agreement that outlined the nature, scope, and extent of the instruments to be provided to those hapū of Ngāti Porou.
The deed of agreement includes a number of innovative foreshore and seabed instruments designed to contribute to the legal expression, protection, and recognition of the continued exercise of mana by the hapū of Ngāti Porou in relation to their foreshore and seabed rohe in a manner that is consistent with the object of the Foreshore and Seabed Act 2004. The object of that Act is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enables the protection by the Crown of the public foreshore and seabed on behalf of all the people of New Zealand, including the protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed.
Only those hapū that choose to ratify the deed of agreement will have their claims affected by the deed and will benefit from its instruments.
Once the deed of agreement is ratified by the groups concerned and signed by the Crown and hapū negotiators, appointed representatives of the groups will file an application in the High Court to confirm that the requirements for territorial customary rights in specific areas have been satisfied.
This Bill gives legislative effect to the contents of the deed of agreement.
Objectives
The public policy objectives associated with the recognition instruments set out in the deed of agreement are to—
(a) recognise the unbroken, inalienable, and enduring mana of the hapū of Ngāti Porou in relation to the public foreshore and seabed in their respective rohe, which is held and exercised as a collective right; and
(c) recognise that the Crown has a responsibility for public access in, on, and over the public foreshore and seabed, and a role in regulating the public foreshore and seabed; and
Alternative options
Status quo
To do nothing would fail to meet the Crown’s obligations under the deed of agreement.
Voluntary approach
This option would involve parties affected by the recognition package (for example, Gisborne District Council, the Department of Conservation, and the Ministry of Fisheries) implementing the instruments voluntarily. This option would not work because the recognition instruments provided for in the deed of agreement will provide the group with new statutory rights and powers and will affect the statutory rights and powers of others, including the Crown, local authorities, and members of the general public.
There is no alternative to legislation that could give effect to the Crown’s obligations under the deed of agreement.
Preferred option
The preferred option involves the Crown agreeing to the deed of agreement, and giving effect to it through legislation. The deed of agreement contains 9 instruments and mechanisms. These instruments and mechanisms, and the regulatory impacts and compliance costs associated with them, are—
a statutory overlay that recognises the special status of the public foreshore and seabed to the hapū of Ngāti Porou. It requires Gisborne District Council to record its status in key public documents such as district and regional plans. It will be taken into account in consent processes under the Resource Management Act 1991. Gisborne District Council will need to provide copies of applications for resource consents to hapū representatives through the hapū management arrangements. This latter requirement relating to applications is not new, as it reflects existing practice under the Resource Management Act 1991:
an environmental covenant will be prepared by the hapū of Ngāti Porou. It will identify issues, objectives, policies, and rules or other methods relevant to the promotion of their world view, including the promotion of sustainable management of their seaward rohe and the protection of the cultural and spiritual identity of the hapū. To the extent that the environmental covenant relates to resource management issues, Gisborne District Council will be required to review key public documents (such as regional coastal plans) the next time those documents are reviewed under the Resource Management Act 1991 to ensure that those documents take the environmental covenant into account. This is consistent with current provisions in the Resource Management Act 1991 relating to iwi planning documents and foreshore and seabed reserve management plans, and does not introduce new compliance costs:
a protected customary activities mechanism will allow the supporting hapū the right to continue carrying out specified customary activities without resource consent in or on the public foreshore and seabed in their agreement area. This is consistent with provisions in the Foreshore and Seabed Act 2004 relating to recognised customary activities and does not introduce new compliance costs:
a wāhi tapu protection mechanism will give the relevant hapū the right to restrict or prohibit access to wāhi tapu and wāhi tapu areas within the public foreshore and seabed in their agreement area. This is analogous to provisions relating to wāhi tapu in the Foreshore and Seabed Act 2004 and does not introduce new compliance costs:
relationship instruments between relevant Ministers of the Crown and the hapū of Ngāti Porou that set out how the hapū and the Ministers and their departments and ministries will interact. The relationship instruments will be developed and implemented by the Minister of Fisheries, the Minister of Conservation, the Minister for the Environment, the Minister for Arts, Culture and Heritage, and the Minister of Energy with ngā hapū of Ngāti Porou. Gisborne District Council and the New Zealand Transport Agency will also be encouraged to enter into memoranda of understanding with the hapū. Parties are free to enter into such arrangements now, as they are consistent with existing legislation. Costs are associated with the preparation, approval, and implementation of these instruments:
a fisheries mechanism will allow the hapū to develop customary fisheries regulations (made by the Minister of Fisheries). The regulations will enable the hapū to manage customary fisheries within their seaward rohe. The fisheries mechanism is consistent with section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the Fisheries Act 1996. There will be costs associated with the development and implementation of the regulations and there will be offences and penalties for breaching the bylaws:
a conservation mechanism will recognise the mana of the hapū by facilitating effective participation of the hapū in the following processes:
establishing or extending marine reserves:
establishing or extending conservation protected areas:
granting concessions:
establishing or extending marine mammal sanctuaries:
granting authorisations and permits in relation to wildlife matter and marine mammal matter:
decisions on the management of stranded marine mammals:
decisions on applications for marine mammal watching permits:
possession by hapū of wildlife matter and marine mammal matter.
These new processes will introduce new compliance costs related to notification and consideration of views for the Department of Conservation:
a place names instrument will be used to recognise traditional names or alter names of culturally significant areas. This is consistent with instruments available under Treaty of Waitangi settlements and does not introduce new regulatory impacts or compliance costs:
a pouwhenua instrument that will give the hapū of Ngāti Porou the right to erect pouwhenua at culturally significant sites. The costs associated with erecting pouwhenua will lie where they fall.
Where specific territorial customary rights areas are recognised as part of the agreements, the hapū signing the agreement will also have the following additional protections within those territorial customary rights areas:
a permission right instrument that will provide hapū with the right to approve or withhold approval for applications for resource consent for an activity that would or may have a significant adverse effect on the relationship of the hapū with the environment in the territorial customary rights area. This will impact on consent authorities, hapū, and third parties that make applications for resource consent in the territorial customary rights area. The permission right represents a new way for hapū to be closely involved in resource management decisions and ensures that their intrinsic cultural association within territorial customary rights areas is recognised:
an extended fisheries mechanism that will provide the hapū with the ability to make bylaws under customary fishing regulations. The bylaws may restrict or prohibit fishing within territorial customary rights areas, either to preserve sustainability or for cultural reasons such as following a death by drowning in the area. This is consistent with the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the Fisheries Act 1996. The Ministry of Fisheries would assist with setting up these bylaws and there could be penalties for breaching the bylaws, via the regulations:
an extended environmental covenant instrument will require the environmental covenant to be recognised and provided for in key public documents (such as the regional coastal plan) that cover or directly affect a territorial customary rights area.
Implementation and review
The recognition instruments and mechanisms noted above will be given effect through this Bill, which in turn gives effect to the deed of agreement.
Consultation
Affected local authorities were consulted throughout the development of the recognition package set out in the deed of agreement and in the Bill. The negotiating representatives of the groups have been consulting with their respective hapū members on the instruments and mechanisms contained in the deed of agreement and in the Bill.
The following agencies were consulted on the Bill: Te Puni Kōkiri, the Ministry of Fisheries, the Ministry for the Environment, the Department of Conservation, the Ministry of Agriculture and Forestry, the Ministry for Culture and Heritage, the New Zealand Historic Places Trust, the Ministry of Economic Development, the Treasury, the Crown Law Office, and the Department of the Prime Minister and Cabinet.