Public Protest Matters

New Zealand Centre for Political Research

The New Zealand Centre for Political Research is a web-based think tank that takes a research-based approach to public policy matters and encourages the free and open debate of political issues. www.nzcpr.com

In June, a subcommittee of the Auckland Council announced plans to make grieving families apply for permission to scatter their loved ones’ ashes in public places. The new bylaw would have prevented ashes being scattered in cemeteries, parks, even beaches, unless a fee was paid and written approval obtained from the council or the Wahi Tapu Maori Komiti – a Maori committee that oversees sacred areas. 

 Understandably, the plan met with widespread outrage and derision. There was unanimous opposition to what was regarded as a ridiculous idea. 

 In our 5 Principles Movement newsletter at the time, we condemned the plan.[1] “This is a vile piece of bureaucratic nonsense. Why should anyone have to ask a local council for permission to scatter the ashes of their loved one in a public place? And even worse, what’s it got to do with Maori? Is it now the view of the Auckland Council that all land and the seas are sacred to Maori? 

 “It’s time local and central government stopped imposing spiritual Maori nonsense on others. If Maori want to believe in spirits and taniwha then so be it, that’s their right – just as it is the right of any person to hold religious beliefs, or any child to believe in the tooth fairy. Imposing spirituality onto others is absurd, and it shows just how absurd the Auckland Council is to let this happen.” [You can register for the 5PM newsletter HERE] 

 In the newsletter, we listed the email addresses of Auckland councillors and encouraged readers who felt strongly about the issue to contact them to share their views. Many people did and without a doubt, their advocacy helped ensure that decision makers came to their senses: last Friday, the council bylaw hearings panel dropped the proposal, claiming, “it was never our intention to charge or expect people to get permission for the scattering of ashes in public places”.   

 As the Tui billboards say, “Yeah right!” 

 However, this fiasco is a good example of democracy at work. A policy proposal, presumably put together by staff, with the support of some council representatives, was rejected once the severity of public protest was felt. 

 With the consultation process on the Auckland Council’s Proposed Unitary Plan entering the cross-submission phase, one can only hope that this same principle will apply, whereby strong public feedback will ensure the rejection of proposals that would have an adverse impact on our biggest city. 

 A case in point is the disastrous new iwi consent process. Before being able to utilise their land, Auckland property owners undertaking work that could have an adverse impact on mana whenua values, or who live within a 150 metre radius of thousands of sites identified on the plan as being of ‘cultural and heritage value to Maori’, are required to obtain a ‘cultural assessment’ from one or more of the 19 iwi that might claim to be effected – even though the precise location and archaeological merits of those thousans of sites have not been confirmed. 

 According to the Herald, this iwi consent process was inserted into the Proposed Unitary Plan just before it was publicly notified on October 1, 2013 – following confidential workshops in June, July and August: “Council documents show the new rule was passed on the final day of five days of wrapping up the planning rulebook for public notification. The rule was briefly mentioned in the committee agenda at the time.”[2] 

 Auckland Councillor Mike Lee explains: “As we know the Unitary Plan was rushed through the Council last year with extraordinary speed. Little or no time was given to consider the huge amount of public feedback – nor did the Council officers allow discussion on the serious criticism of the draft plan by legal reviewers. In fact they went to some lengths to conceal its existence absurdly claiming it to be ‘confidential to management’.”[3]   

 The iwi consent process appears to have been driven by council staff in conjunction with iwi. At the end of July last year, the council’s Chief Planning Officer, Roger Blakeley invited councillors and local board members to an Auckland Plan Committee workshop, to enable representatives of Auckland’s 19 iwi authorities to present their demands directly to decision-makers. 

 The memo explained that council staff had been working with iwi since December 2011 to develop Treaty of Waitangi provisions for inclusion in the plan. Highlighted was the need to protect Maori cultural heritage, to resource iwi participation and involvement in decision-making, and to establish joint management processes and the transfer of power. Fifteen new sites of significance to mana whenua, were signalled for inclusion in the notified plan. 

 No-where did the memo indicate that 3,600 new sites that had not been evaluated, were about to be added to the plan. Yet when the plan was notified, that is precisely what happened – those 3,600 new sites that iwi claimed had value, were included, alongside the 61 previously approved sites of significance 

 In their submission on the Proposed Unitary Plan, the New Zealand Archaeological Association took exception the inclusion of these new sites “without any prior assessment and in many cases without confirmation of the presence, exact location and extent of the sites”.[4] They explained that many were either insignificant or not there at all. A random check carried out on 32 of the sites, found nothing of significance: “Many of the sites are small shell middens, most of which do not appear to have any associated settlement remains. While these have… value, they are generally of low to moderate archaeological significance and would not meet the historic heritage criteria for scheduling in the Proposed Auckland Unitary Plan”. 

The Association explained that “on the basis of previous cultural impact assessments the sites considered by Mana Whenua to be of high cultural value are generally pa, urupa [burial grounds], kainga [settlements], and some pit and terrace sites rather than small isolated shell middens”.

They were critical of the protected areas surrounding the sites: “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 50 metre buffer around those circles, within which the rules are applied (i.e. a diameter of 300m, affecting an area of 7ha).”  They consider this buffer zone is far too large and will “restrict activities”, imposing “considerable (and for the most part unnecessary) costs on landowners and land managers”. 

The Archaeological Association recommended that all designated sites should be removed from the Unitary Plan, with only those properly assessed and evaluated as genuine and significant, retained. They also proposed the removal of the buffer zones. 

Brent and Jennifer Tassell of Puhoi have had first hand experience of the iwi consent process.[5] When they went to renew a resource consent on a bore hole that had been operating for 10 years, supplying water to eight homes, they were told they would have to apply to 14 different iwi in order to gain approval to keep the water running.

With the taking of groundwater now on the list of activities that could have a cultural impact, any iwi can insist on a cultural impact assessment. Applicants have to foot the bill, not only for the assessment, but also for the “costs of engagement” in the process.

Former Labour MP Shane Jones – who believed that Maori heritage should never be used as a basis for divisiveness – said of the case, “Iwi should not be allowed to intervene to test whether there’s a taniwha down a 10-year-old bore”!

In a letter to the Herald, a Devonport resident described how a family member had fallen foul of the mana whenua rules: “The Auckland Council did not contact iwi on behalf of the consent applicant but gave a list of iwi for him to contact. While his site was identified as being in one of 3661 mana whenua sites, there was nothing on the site. It was 50m from a midden. One iwi charged $2600, including $300 for a blessing, to assess a site with nothing there.”  

Until the proposed Unitary Plan came into effect, Auckland had 61 scheduled sites of significance to mana whenua. As a result of a secret deal with iwi, a further 3,600 sites that have not been assessed, but are claimed to be of value to mana whenua, were added. As if that was not bad enough, a further two thousand sites in the form of Significant Ecological Areas or SEAs have now been added by council staff.

Councillor Mike Lee explains that anyone living within or near Auckland’s many and extensive SEAs will also be required to consult with iwi: “These residents too have to first obtain ‘Cultural Impact Assessments’ from iwi before they can get resource consents for work around their properties. One of the many criteria iwi will be assessing is whether your driveway job, vegetation clearance or earthworks is consistent with the ‘principles of the Treaty of Waitangi’.”

Auckland University’s associate law professor Ken Palmer, an expert on the Resource Management Act, believes the iwi consent rule in the Auckland plan is invalid.[6] He explains that Labour amended the RMA in 2005 to clarify doubts over consultation with iwi. The section in the Act unequivocally states that iwi consultation is not necessary: “neither [an applicant nor a council] has a duty under this act to consult any person about the application”. He believes the current rules “impinge on normal rights of freehold ownership”.

This week’s NZCPR Guest Commentator, Auckland freelance writer Michael Coote, explains that since the submission process on Auckland’s Proposed Unitary Plan has moved into the second phase, any of the 9,400 original submitters can now make further submissions:

“A window of opportunity presents itself to amend the egregious errors of the flawed proposed Auckland unitary plan. Original submitters on the plan have been emailed to tell them they have until 5pm, 22 July 2014, ‘for lodging further submissions, either in support or opposition to original submissions.’ Those lucky enough to receive this email should get cracking because time is slipping away to have their say.

“Of particular note, there are 3,954 references to mana whenua in Auckland Council’s tabulated summary of submissions received, which suggests a lot of additional submitting to do by those opposed to the racialisation of the unitary plan in favour of Auckland’s Maori.” [All submissions to the Proposed Unitary Plan can be seen HERE]

As with the fiasco over the scattering of ashes, if the Auckland Council’s democratic process is working properly and opposition to the iwi consent farce is strong enough, one must hope that common sense prevails.

Surely the Independent Hearings Panel will recognise the gross injustice to those Auckland property owners wanting to utilise their land, of requiring them to seek cultural assessments from one or more of 19 Auckland iwi. This is especially the case if they live within a 7ha buffer zone of 5,661 scheduled sites – the majority of which have not been authenticated and might not even exist. With these restrictions covering 40,000 ha of the Auckland region, any financial benefit to iwi from this consent process will be offset by a growing public backlash, and on-going damage to Auckland through uncertainty, costs and delays.

 
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