Spelling it out

Plan Change 94B Papakāinga is progressing through the planning process. Last Monday, those who had made written submissions had the opportunity to voice their opposition or support to the hearings panel. I presented a submission on behalf of a community group advocating landowner rights.

That panel consisted of three commissioners; Greg Hill from Auckland, Russell De Luka from the Bay of Plenty, and Willow-Jean Prime who is well known in the Far North as a district councillor and the Labour candidate in the 2015 Northland by-election. She is also known as a strong advocate for Maori. A staff recommendation that Ms Prime be appointed because of her “tikanga Maori expertise” (tikanga is generally taken to mean “the Maori way of doing things”) was accepted by Council’s Planning Committee in September.

Just to recap, Plan Change 94B creates a unique set of planning rules for Maori land (which the plan defines very generally as land owned by Maori having an ancestral attachment).  Under the new provisions they would have their own rules which, while not totally permissive, would make it easier to obtain consent for any commercial, industrial or residential activity they may wish to undertake.

It’s a very significant piece of planning law, from a number of perspectives. At a principles level, land rules are usually based on effects arising from use. But here the WDC is saying it’s OK for one group to create environmental effects but not OK for another.

At a practical level, those who are likely to be affected by the development, would not have an opportunity to have a say. This is not what most affected parties would expect of their council. It’s ironic that non-Maori have to obtain approval from Maori when obtaining a resource consent, but Maori do not need to ask non-Maori.

Unfortunately, the draft plan change does not stop at creating two sets of rules. It goes  further to enable any Papakāinga development proposal that require a resource consent to be heard by at least one commissioner with “expertise and qualifications in tikanga and Mātauranga Māori and resource management” – someone like Ms Prime.

The plan change also makes reference to Section 33 of the Resource Management Act which enables a local authority to “transfer any 1 or more of its functions, powers, or duties under this Act… to an iwi authority.” That means, potentially the WDC could pass ALL decision making responsibility for Maori land onto iwi!

This is in contrast to a fundamental principle in our justice system which lawyers refer to as Nemo iudex in causa sua, but lay folk know as “no-one should be a judge in his own cause”.

In most part the questions asked of us by the hearing commissioners were sensible and welcomed. The questions that were most oblique came from Ms Prime, the last being in the form of a statement that a Maori word in our submission had been spelt incorrectly.  She then took some time correcting the spelling,  l – e – t – t – e – r    by   l – e – t – t – e – r.

Of course, the point Ms Prime was making was not about spelling – it was more likely she was sending a message to her people in the audience that a submitter who spelt a Maori word incorrectly obviously does not understand anything Maori and should not be taken seriously!

In my view her comments underscores the point about Nemo iudex in causa sua, which may well present a spelling challenge for Ms Prime!

The position we took on this was that stacking the deck with vested interests would introduce bias, and undermine confidence in the process. Our submission was that if a person with t-i-k-a-n-g-a Maori experience was to sit on the hearings panel it should be in an advisory capacity only. Having Ms Prime as a voting member on the hearings panel does not instil us with great confidence that the process is independent and that the rights of all landowners will be fairly considered.

While one can make light of spelling, this is a very serious issue that could have very serious consequences for those living close to Maori land, and anyone who may be considering buying land in the general area. One morning they may wake up to find something like a saw mill in their neighbourhood, with all of the effects that go with it: logging trucks, machinery,  noise, and so on. And its quite conceivable that the mill would be operated by an overseas company in a joint venture with the Maori land owners to take advantage of the regulation free Papakāinga development rights.

One would hope that our elected representatives are standing up for us on these issues, but to date, most have been invisible.