As we know, the Government is replacing the Resource Management Act with two new laws: the Natural Environment Bill and the Planning Bill. Recently, the Minister responsible, Chris Bishop, has tabled an amendment paper and the final readings of the Bills are set down for this week.
For Hobson's Pledge, a key focus throughout this process has been the Government's proposals around Mana Whakahono a Rohe Agreements (MWARs).
These agreements between councils and iwi were used by some councils to push co-governance in ways that could not easily be undone by future councils. They embedded iwi deeply within council processes, enabled unelected representatives to operate alongside elected councillors, and, once established, were extremely difficult to remove or change.
From Hobson's Pledge to Federated Farmers, calls to abolish these agreements were loud and clear. We also warned that iwi across the country were racing to lock in MWARs before the new RMA legislation came into force.
The good news is that sustained public pressure has worked.
A few weeks ago the Government announced that MWARs would be abolished. No new MWARs will be able to be created, and all existing agreements will be unwound.
However, as we noted at the time, the Government also announced that it would allow "Iwi Participation Agreements" (IPAs) to replace them. At the time, it was unclear what these agreements would actually look like. We even wrote to Minister Bishop seeking clarification and are still awaiting a response.
The amendment paper recently released finally provides many of those details.
After reviewing the changes with our lawyers, we can say that there is a clear intent with the proposed IPAs to break from the status quo. They are not simply MWARs under a different name - there is a clear intent to limit the scope of what these agreements can be used to achieve.
Councils will no longer be compelled to enter into formal agreements with iwi. While iwi may request an IPA, councils will not be subject to mandatory negotiation timeframes and can respond as they see fit. Under the old MWAR regime, councils often faced substantial pressure to enter into agreements and iwi groups across the country were actively pursuing them.
Importantly, the scope of any IPA is now much narrower.
The proposed legislation limits IPAs to matters specifically authorised by legislation or regulations. These include issues such as iwi participation in existing planning processes, cooperation around Treaty settlement obligations, and notification arrangements where iwi are already recognised as affected parties.
Our lawyers advise that, as the legislation is currently drafted, IPAs cannot be used to create or justify permanent co-governance structures or ongoing delegated decision-making powers.
This is a significant improvement, and the Government deserves credit for listening to our and the public’s concerns. What is now being proposed is fundamentally different from the old MWAR framework.
The previous MWAR provisions allowed agreements covering almost any matter relating to planning functions and powers. Because the powers were so open-ended, this created opportunities for councils to extend arrangements well beyond consultation and into areas such as co-governance and delegated authority, even if it was never the intent of Parliament for them to extend this far.
But while these changes are welcome, one major concern remains. It is such a significant flaw that it could undermine the intent of the changes if there is a change in government.
The legislation as amended grants the Government broad regulation-making powers that could fundamentally alter how IPAs operate in the future.
That means many of the protections contained in the legislation could potentially be weakened or removed by regulation. We already know that Labour has committed to restoring co-governance mechanisms in future RMA reforms. Under the legislation's current drafting, a future government may not even need to return to Parliament to make substantial changes.
Instead, it could simply rewrite the regulations, without any public consultation.
A future government could expand the matters covered by IPAs, impose new negotiation requirements on councils, restrict termination rights, and effectively recreate many of the features the current Government says it is removing today.
There are no clear mechanisms in the legislation to stop them from doing so.
There is also a lesser, but still important, concern around terminating IPAs.
Under MWARs, both parties effectively had to agree before an agreement could be ended, making change extremely difficult. While the Government is proposing a process for renegotiating IPAs, it remains unclear what happens if negotiations fail or if one party refuses to participate. It may be that the council is effectively stuck in the agreement until Government regulations provide for a dispute resolution process.
Further clarification is needed.
Overall, Hobson's Pledge welcomes the Government's decision to abolish MWARs and restore the principle that councils should be accountable to all those who elect them.
We also welcome the fact that replacement IPAs are substantially narrower in scope and that councils will no longer be forced into rushed negotiations.
But none of these gains will be secure if future governments can reverse them through regulation.
If Labour, the Greens, Te Pāti Māori, or TOP were to return to government, there is every reason to believe they would seek to reintroduce race-based co-governance mechanisms. The Government should therefore close this loophole now.
This won't stop a future government from changing the main legislation. But it will ensure that, if that choice is made, it will be done with full public and Parliamentary scrutiny, including the opportunity for people to make submissions to a Select Committee.
We urge the Government to amend the legislation so that any future attempt to expand IPA powers, create co-governance arrangements, or alter councils' rights must be approved by Parliament rather than implemented by regulation behind closed doors.
Only then can New Zealanders be confident that these reforms will endure beyond a single term of government.
