Customary-rights worries aired

By RUTH BERRY

Customary rights should not be given "special treatment" under the Resource Management Act as proposed in the foreshore bill, say councils.

The bill undermines the environmental protection mechanisms which are the bedrock of the act, Local Government New Zealand (LGNZ) told the select committee examining the bill yesterday.

The Court of Appeal foreshore decision had accepted that the exercise of rights in respect of Maori customary property under the common law was subject to the RMA, as all property rights were, the councils' submission said.

"Against that background it is surprising that the bill proposes that instead of recognised customary activities being subject to the RMA, they should, in some respects, be exempted from and, in others, have a priority over the RMA and its associated instruments and practices."

Complicating the issue was the "great uncertainty" about the nature and scale of the activities that might be authorised under a customary rights order.

It appeared the assumption was that customary activities would be "relatively small in scale and will have few, if any, significant adverse effects on the environment that are not already known".

If this proved to be the case, the councils believed, the activities "could well be" permitted within regional coastal plans. But they felt it was "unwise" to proceed on that assumption.

While the bill said an order would be granted only for an activity carried on substantially uninterrupted since 1840 in accordance with "tikanga Maori", there was considerable scope for the courts to interpret what that meant.

There could be "no certainty" the courts would make orders only in relation to activities already known to the community and with few adverse environmental effects.

"This is a major reason why LGNZ is concerned about the extent to which the bill challenges the basic approach of the RMA."

LGNZ said the bill:

* Exempts the exercise of recognised customary activities from fundamental controls in the RMA, including the central duty to avoid, remedy, or mitigate adverse effects on the environment.

* Gives recognised customary activities primacy over rules in plans and proposed plans.

* Gives them primacy over other activities that may be authorised under the RMA and exempts them from some enforcement provisions

LGNZ said the proposed "special treatment" was even more significant given the bodies recognising customary activities - the Maori Land Court and the High Court - had no specialist expertise in resource use or environmental protection.

"LGNZ does not understand why customary activities should be treated any differently in terms of NZ's environmental protection legislation from any other activities ... "

Its primary recommendations were that:

* The content of customary rights/recognised activities should be defined in the foreshore bill.

* Recognised customary activities should be made subject to the RMA as other activities were.

LGNZ did not oppose the protection of customary activities becoming a new matter of national significance under the RMA.

It accepted the bill did not confer "veto rights as such" to customary right-holders. But it said the bill confused property rights with the intent of the RMA.

It believed proposed changes to the RMA to accommodate the foreshore bill should be altered to enable authorities to grant consents for activities which had significant adverse effects on customary activities if "the public interest requires the activity to take place".