23 November 1998

The Redrafted ERMA New Zealand Protocol on Taking into
Account the Principles of the Treaty of Waitangi
and Section 6(d) of the HSNO Act

Draft protocol

TAKING INTO ACCOUNT THE PRINCIPLES OF THE TREATY OF WAITANGI (TE TIRITI) [SECTION 8] AND THE RELATIONSHIP OF MÄORI AND THEIR CULTURE AND TRADITIONS WITH THEIR ANCESTRAL LANDS, WATER SITES, WAAHI TAPU, VALUED FLORA AND FAUNA AND OTHER TAONGA [SECTION 6(d)].

Introduction

This Protocol outlines how the Authority will take into account the principles of the Treaty of Waitangi and the relationship of Mäori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga pursuant to sections 6(d) and 8 of the Hazardous Substances and New Organisms Act (the Act).

The role of Ngä Kaihautu Tikanga Taiao (Ngä Kaihautu) is included in this protocol.

The Principles of The Treaty of Waitangi (Te Tiriti)

There is no single point of reference which defines the principles of the Treaty of Waitangi. However, decisions by the Court of Appeal and the Waitangi Tribunal have helped clarify how the Treaty principles might be interpreted and implemented.

Some of the key Treaty principles relevant to the work of the Authority include:

the obligation to act reasonably and in the utmost good faith;
the obligation to actively protect Mäori interests;
the requirement to make informed decisions;
the obligation on the Crown to not unduly impede or diminish its capacity to provide redress where a valid Treaty grievance is established.

The relationship between the Crown and Mäori has been described as one akin to that of a partnership (New Zealand Mäori Council v Attorney General (Lands Case) 1987).

How the Authority Intends Taking into Account the Principles of Te Tiriti (the Treaty)

Partnership relationship

The partnership nature of the relationship between the Crown and Mäori suggests a role for Mäori in the Authority's decision-making processes where Mäori interests arise.

Accordingly, the Authority will look to Ngä Kaihautu as the primary vehicle for including Mäori in decision-making committees. Ngä Kaihautu may recommend its members or other Mäori with expertise in Tikanga Mäori, Matauranga Mäori (Mäori knowledge) and knowledge of Te Tiriti or other relevant expertise, to be appointed on to committees to consider applications.

The Authority in consultation with Ngä Kaihautu will manage the membership of these special committees.

Exercising utmost good faith

The principle of exercising utmost good faith is linked to the partnership relationship between the Crown and Mäori in that it denotes a measure of good will, acting reasonably and with respect and sensitivity towards each other.

Out of respect to this principle, the Authority undertakes to effect the processes and procedures outlined in this Protocol and to exercise utmost good faith in its dealings with Ngä Kaihautu and Mäori generally.

The duty to make informed decisions and the requirement to actively protect Mäori interests

In order that the Authority's decision-making is informed on matters of concern to Mäori, the Authority will endeavour to ensure that the barriers to Mäori accessing the Authority's decision-making processes are minimised.

Consequently, the Authority will accept submissions and representations to hearings given in the Mäori language and will give consideration to submissions expressed in accordance with Tikanga Mäori (Mäori cultural traditions).

In addition, the Authority may treat as confidential any information that has been classified as being culturally sensitive by those Mäori who have provided such information.

As a positive step in actively protecting the relationship between Mäori and their taonga, the Authority has begun to assemble a list of issues likely to be of particular significance to Mäori (along with those that are unlikely to be of significance) - see Annex 1. The Authority is committed to extending and refining this understanding and will consult widely with Mäori in the process.

The Authority also recognises that many of the issues of significance to Mäori may not be unique to Mäori and should be taken into account in decision-making.

(Matters to do with information gathering and consultation with Mäori are addressed in the subsequent section on Consultation with Mäori.)

The obligation on the Crown to not unduly impede or diminish its capacity to provide redress where a valid Treaty grievance is established

The Authority recognises that there are issues which are currently being considered before the Waitangi Tribunal that may impact on the work of the Authority in future (particularly the WAI262 and WAI741 claims). The Authority, in consultation with Ngä Kaihautu, will monitor the progress of these claims.

Process for Identifying Issues of Significance to Maori

Until clear guidelines have been set, the Authority will adopt a case by case approach to assessing applications for their significance to Mäori.

Applications or prospective applications will be screened at an early stage by ERMA New Zealand to assist applicants to determine whether there are likely to be significant issues for Mäori and whether consultation is required to provide the necessary information to the Authority.

How the Authority will Assess Applications

In making decisions on applications, the Authority will consider information, advice and input from Ngä Kaihautu, ERMA New Zealand staff, the applicant, public submissions, expert reviewers, and any information obtained through direct consultation with Mäori.

The Authority will identify the issues raised by the application and assess the extent to which these issues are likely to be significant. In forming a view on the significance of the issues, the Authority will consider:

the extent to which an application may affect the matters addressed in sections 6(d) and 8;
the strength of the evidence presented as to any impact (or lack of impact) on the relevant Mäori community;
the general characteristics of the risks as set out in the Methodology e.g. the extent to which the risk is involuntary, permanent, etc.; and
the scope for managing risks to Mäori through the imposition of controls on approvals where controls are appropriate.

Applicants will be expected to include information that enables identified risks and impacts to be evaluated in this way (see the following section on consultation with Mäori).

The Authority may also seek independent verification of any of the matters raised (or omitted) by the applicant. For example the Authority may commission an independent review of any claims made by the applicant in relation to the probability or magnitude of effects.

Consultation with Mäori

The Courts and the Waitangi Tribunal have stated that genuine consultation with Mäori is fundamental to taking into account the principles of the Treaty. The Authority accepts the importance of consultation with Mäori when its decision-making has the potential to affect Mäori interests.

The Act requires the Authority rather than the applicant to take account of sections 6(d) and 8 of the Act. However, it cannot properly do so without the requisite information. The Authority's policy is to place the onus on the applicants, in the first instance, to provide that information. This policy recognises that the applicant is usually in the best position to obtain information, can do so more cost-effectively than other parties, and would have to pay the costs involved anyway.

In general, hapu and iwi will be best able to define precisely how a particular hazardous substance or new organism may impact on their taonga.

Where risks have a local impact (a good example being a new organism field trial in a particular location) then consultation may be required with local whanau/hapu. Where risks to Mäori potentially have a national impact (e.g., some "release" applications) nation wide consultation may be necessary.

Note that, in many instances direct consultation with Mäori may not be required, such as where the Authority is already well informed on the particular impact and no Mäori interest is affected.

In order to minimise unnecessary consultation, the Authority will work with Mäori to develop profiles of applications which are unlikely to raise significant issues for Mäori, and for which consultation with Mäori will not be required. Once this is done more detailed guidelines to applicants will be issued. In the meantime applicants should consult with ERMA New Zealand staff.

Note also that in some instances, it may be impractical for consultation to occur (such as for applications for rapid assessment under sections 35 and 42 of the Act, or for some classes of applications for hazardous substances in containment under section 30 of the Act).

The Role of Ngä Kaihautu Tikanga Taiao

Ngä Kaihautu is a Mäori Advisory Group which has been established under the First Schedule of the Act. Ngä Kaihautu will have input and provide advice to the Authority on:

taking into account the principles of the Treaty of Waitangi under section 8;
the extent to which the relevant application takes into account section 6(d), and;
the appointment of experts to committees to consider applications that raise issues of significance to Mäori.

Taking into account the principles of the Treaty of Waitangi - section 8

Ngä Kaihautu will provide advice on the extent to which the principles of the Treaty are adequately addressed within an application and any other Treaty issues that may arise from an application.

The extent to which the relevant application takes into account section 6(d)

Ngä Kaihautu will provide advice on the extent to which applicants have adequately addressed section 6(d) of the HSNO Act. This may include advice about:

what consultation with Mäori is needed or the adequacy of any consultation or any assessment of whether the application properly addresses issues of significance to Mäori;
any further information required from applicants;
other issues (including those that have not been raised by the applicant or submitters).

Appointing experts to committees to consider applications that raise issues of significance to Mäori

The Authority will generally establish committees, in accordance with Clause 43 of the First Schedule of the Act, to consider applications. Where an application raises issues of particular significance to Mäori, the Authority will consider whether Mäori should be appointed to the committee considering that application.

Under these circumstances Ngä Kaihautu may recommend that one or more of its members be appointed onto such a committee. Other Mäori with relevant expertise, including Tikanga Mäori, Matauranga Mäori (Mäori knowledge) and knowledge of Te Tiriti o Waitangi may be appointed to these committees on the recommendation of Ngä Kaihautu.

Where a member of Ngä Kaihautu is appointed to a committee to consider an application, or seeks to make a personal submission on an application, that member shall not contribute to the formulation of the collective view of Ngä Kaihautu on the application concerned or be involved in any other way with that application.
ANNEX 1

PRELIMINARY IDENTIFICATION OF ISSUES OF SIGNIFICANCE AND NON-SIGNIFICANCE TO MÄORI

Applications which might impact on the relationship of Mäori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna and other taonga [section 6(d) of the HSNO Act], may include situations where particular hazardous substances or new organisms:

may affect mahinga kai (traditional Mäori food resources) - e.g. a proposal that impacts on the quantity and quality of traditional food resources;

may affect traditional Mäori resource management practices - e.g. where a new organism crosses with and therefore impacts upon the effectiveness of flora used by Mäori for medicinal or other purposes;
may affect valued water resources.

Other issues might arise when:

a new hazardous substance or new organism affects a Mäori heritage site - e.g. a field trial is carried out on a waahi tapu or similar site of significance to Mäori;
a new organism is created using indigenous flora or fauna and the related traditional Mäori knowledge associated with that indigenous flora or fauna - e.g. a traditional medicinal plant is genetically modified to improve its medicinal qualities;
genetic material is transferred from a genetically modified organism to flora and fauna valued by Mäori - e.g. through hybridisation of plants or through reproductive processes of bacteria or viruses and other lower organisms;
where Mäori object to a new organism or hazardous substance because of spiritual, ethical, or socio-cultural reasons e.g. mixing genes from different species or using human genes to create new organisms, or where the mauri (the spiritual life force) of a river is threatened by a new hazardous substance.

Applications which are not expected to have effects of significance to Mäori, and will generally not require assessments or consultation, include:

applications for the release of new organisms which can be dealt with using the rapid assessment provisions of the Act (section 35);
most applications for GMO developments which can be dealt with using rapid assessment provisions of the Act (section 42). Note, there is a possibility that some issues may arise in relation to the sourcing of the genetic material;
most applications for the importation of organisms into containment (section 39), but not applications for field testing;
applications for importing hazardous substances into containment (section 30).

This initial guide will be progressively developed over time so that, to the extent possible, "issues of particular significance" to Mäori are identified in advance for the benefit of applicants.