Best Practice Guidelines
TANGATA WHENUA EFFECTS ASSESSMENT – a roadmap for
undertaking a Cultural Impact Assessment under HSNO 1996
Repo Consultancy Ltd
This report has been prepared for ERMA by REPO Consultancy Ltd.
Writer:
Julianne Chetham MSci (Auckland)
Reviewers:
Peter Nuttall, M.SocSci (Waikato)
Alison Newell, MIEEM, C.Env, MSc (London)
Tui Shortland, BIEM (Te Wananga o Aotearoa)
MAY 2010
REPO Consultancy Ltd
PO Box 1867
Whangarei
021 02043455
[email protected]
DISCLAIMER
This document has been prepared for the benefit of ERMA. No liability is accepted by REPO Consultants Ltd with respect to its use by
any other person and/or for the accuracy of information provided by third parties. This declaimer shall apply notwithstanding that the
document may be made available to other persons for an application for permission or approval or to fulfil a legal requirement.
TANGATA WHENUA EFFECTS ASSESSMENT – a roadmap for undertaking a CIA.
INTRODUCTION
This effects assessment model is a best practice guideline for applicants to the Environmental Risk Management Authority (ERMA) preparing or
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commissioning a Tangata Whenua Effects Assessment (also referred to as CIAs or Cultural Impact Assessments) . CIAs should be considered as primarily a
tool for establishing a basis for a partnership between tangata whenua, applicants and ERMA in regard to a particular application. Tangata whenua will
usually have an expectation that where effects are identified on their environment, culture, or values that the relationship will be an ongoing one. This
roadmap is a stepped approach to establishing if the application is of concern to tangata whenua and what steps or processes might be used to address
issues raised, with a matrix-based methodology for use by experienced facilitators through structured hui and assessment.
BACKGROUND
Under the Hazardous Substances and New Organisms Act 1996 (HSNO) applicants to ERMA are required to comply with, among other considerations,
sections 5 (b), 6(d) and 8 being:
5. All persons exercising functions, powers, and duties under this Act shall, to achieve the purpose of this Act, recognise and provide for the following
principles:
(b) The maintenance and enhancement of the capacity of people and communities to provide for their own economic, social, and cultural wellbeing and
for the reasonably foreseeable needs of future generations.
6. All persons exercising functions, powers, and duties under this Act shall, to achieve the purpose of this Act, take into account the following matters:
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(d) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga
8 All persons exercising powers and functions under this Act shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).
A Tangata Whenua Effects Assessment is a process for identifying the effects of an application on tangata whenua and their culture and values to inform
ERMA in making its decision in accordance with the legislation. There is no statutory obligation to produce such an assessment, however where there is any
potential for impact on tangata whenua, their environment, culture and values, a CIA is best practice. Where effects might occur tangata whenua are likely to
want an ongoing relationship with the applicant and to maintain an active involvement with the activity. A well executed CIA has wider application than
identifying effects at the time of application and should be viewed as a tool to assist in an ongoing process and relationship between tangata whenua and
applicant and activity.
Unlike Environmental Impact Assessments (for which there are ever increasing industry-accepted standards, methodologies and processes) Cultural Effects
Assessment, here and internationally, is still in its infancy of acceptance and development. There is little consistency in or acceptance of what a CIA is (or is
not), methodologies or processes for undertaking such assessment or in professional skills and competencies needed for practitioners facilitating such
assessments. There is a range of legislation, e.g. the Resource Management Act (RMA) and Fisheries legislation where CIAs are an important tool for
assessing applications for differing activities and processes with the potential to impact on tangata whenua.
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ERMA has commissioned this guideline to assist responsible applicants and tangata whenua representatives and advisors in preparing applications under HSNO. The Quality Planning
website includes an excellent set of Frequently Asked Questions on CIAs (http://www.qp.org.nz/consents/cultural-impact-assessment.php) in relation to RMA requirements that are equally
applicable to HSNO.
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The Courts have held, in regard to the RMA, that the definition of “taonga” is broad including for example te reo (language) and tangible and intangible matters.
Various pieces of legislation include processes for protecting against the effects of an application on a range of values. Often these values are grouped under
what have become known as the four-well-beings – environmental (or bio-physical), economic, social and cultural. This is also refered to as quadrupule
bottom-line reporting. While there are well recognised tools and processes for assessing effects on most bio-physical matters (e.g. water quality, ecology and
air quality) and, to a lesser degree, economic and social values, there are few recognised tools for undertaking assessments on the cultural well-being of
tangata whenua. HSNO includes sections specifically designed to ensure that tangata whenua, relationships of Maori with taonga and the principles of the
Treaty of Waitangi are taken into account. Applicants under HSNO are required to identify all effects of an activity, undertake a risk analysis of the effects
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identified, and then, where adverse effects are identified, demonstrate measures to avoid, remedy or mitigate such effects . Effects on the environment are
identified in the HSNO as including:
any potential or probable effect; and
any positive or adverse effect; and
any temporary or permanent effect; and
any past, present or future effects; and
any acute or chronic effect; and
any cumulative effect that arises over time or in combination with other effects.
PREPARING A TANGATA WHENUA EFFECTS ASSESSMENT
A successful TANGATA WHENUA EFFECTS ASSESSMENT should allow the tangata whenua potentially affected by an application to:
1.
ESTABLISH a relationship with the applicant and formally agree a process or “roadmap” for undertaking the CIA. Such agreement should recognise that
the maintenance of an ongoing relationship beyond the decision is good practice and valuable to both parties.
2.
UNDERSTAND the proposed activity, by REVIEWING the draft application and/or all supporting information (such as technical reports) and through
workshops with the applicant and their advisors/consultants.
3.
IDENTIFY the relationships of the tangata whenua with the taonga and ASSESS whether the statutory “cultural” safeguards of the HSNO (ss 5(b), 6(d)
and 8) have been met.
4.
IDENTIFY the effects of the proposed activity on tangata whenua and their values and ASSESS the magnitude of the effects identified.
5.
ASSESS the level of risk associated with the effects identified.
6.
Where significant adverse effects on tangata whenua or their values are identified, ASSESS whether these can be avoided, remedied or mitigated.
7.
FRAME RECOMMENDATIONS to the applicant on measures that the tangata whenua would like the applicant to take to counteract any adverse effects.
8.
REPORT BACK to the tangata whenua on the results of the assessment in a clear and transparent manner.
9.
PRESENT FINDINGS to the applicant/ERMA.
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ERMA (2005): “Working with Maori under the HSNO Act 1996 – A guide for Applicants”.
Section 2, HSNO 1996
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Section 2 HSNO 1996
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STEP 1. ESTABLISH A RELATIONSHIP
This step will be completed by:
Agreeing the design of a TANGATA WHENUA EFFECTS ASSESSMENT
Agreeing who should undertake/facilitate the Assessment. International best practice states that CIAs should be carried out independently by the
indigenous group affected. For example, the applicants should not be present during the assessment hui, thus enabling tangata whenua to
openly discuss sensitive values and issues. Tangata whenua may wish to utilise trusted expert facilitators of their choosing.
STEP 2. UNDERSTAND AND REVIEW THE APPLICATION.
This step will be completed by:
Holding meetings with the applicant and/or their consultants and where necessary relevant consent processing staff in ERMA
Requesting and receiving full copies of the proposal, supporting information and copies of correspondence, etc of the agencies
Reviewing the material and providing an analysis of the application identifying key areas of concern for tangata whenua in language that makes it
easily understood by the tangata whenua.
STEP 3. IDENTIFY THE RELATIONSHIP OF TANGATA WHENUA WITH THE TAONGA, ASSESS WHETHER THE SAFEGUARDS OF THE HSNO
HAVE BEEN MET.
This step will be completed by using the following matrix in hui and follow-up workshop to identify:
The relationships between Maori, their culture AND their traditions AND their ancestral land, water, sites, waahi tapu and other taonga that might
be affected by the proposal
Whether the principles of the Treaty of Waitangi are affected by the proposal.
Matrix 1.1 the relationship between tangata whenua and their taonga
relationships that
must be taken
into account
Maori
Culture
Traditions
subcategory
Ancestral land
Water
Sites
Waahi Tapu
Flora and
Fauna
Prior to completing the matrix the hui is required to complete the sub-category column, e.g. “Maori” can be further considered as:
Hapu/iwi authorities
landowners/beneficiaries in neighbouring lands
ahi kaa, hau kainga, mana whenua, tangata whenua, kaitiaki
whanau, hapu, iwi, waka
taurahere
Other Taonga
The relationship of each group may be quite different and may warrant separate consideration. Such distinctions are likely to vary dependant on the
location and nature of the application and/or effect and the significance of the site/resource/taonga under discussion.
Matrix 1.2
Principles of Treaty of Waitangi
Take into account Principles
of:
The obligation to act reasonably,
in utmost good faith and in a
manner that is consistent with
partnership.
The requirement for all decisions
to be made from an informed
basis .
The obligation to actively protect
Maori interests.
The obligation on the Crown to
not unduly impede or diminish
its capacity to provide redress
where a valid Treaty grievance
is established.
Are these impacted by the proposed application, and if so, how?
Because there is no single point of reference defining the principles of the Treaty, the HSNO Methodology Order 1998 sets out the Principles of the
Treaty as they apply in the HSNO context. They utilise the principles set out in The Court of Appeal decision: New Zealand Maori Council v Attorney
General 1987.
STEP 4. IDENTIFY THE EFFECTS ON TANGATA WHENUA AND THEIR VALUES
This step will be completed by using the following matrix in hui and follow-up workshop to identify the effects of the proposal on tangata whenua.
1. Prior to completing the matrix the hui is required to complete each sub-category column, e.g. what aspects of the bio-physical environment might
be affected by the proposal (land, water, plants, fish, etc).
2. Effects are scored as minor (m), moderate (mm), or significant (s) and whether it is positive (+) or adverse (-)
Type and magnitude of effect on Tangata Whenua wellbeings
Effects
Well
Beings
Temporary
Economic
Social
Cultural
Environmental
Matrix 2:
The productivity and life-sustainaing
quantity and quality of:
Mahinga kai
Nga taonga koiora,
Nga taonga tuku iho,
Te whenua
Nga moana, roto, awa, manga
Te hau
Habitats and ecosystems
Other natural values
The potential adverse or beneficial effect
on the kaitiakitanga role of Maori,
including the portecton and
enhancement of mauri, mana and tapu
of:
Te tangata whenua,
Nga taonga koiora,
Nga taonga tuku iho,
Te whenua
Nga moana, roto, awa, manga
Te hau
Tikanga
Matauranga Maori
The protection and enhancement of:
Taha wairua,
Taha whanaunga,
Taha hinengaro,
Taha tinana
The ongoing capacity and capability
of Maori to develop economically,
The ongoing participation of Maori
in the generation of economic
benefit, and the burden of
economic cost
Permanent
Past
Present
Future
Cumulative
Acute
Chronic
STEP 5. ASSESS THE LEVEL OF RISK
After identifying moderate or significant effects and evaluating the likelihood of these occurring in Step 4, the hui should then rank both positive and
adverse effects as; unlikely (u), likely (l), or highly likely (h).
Moderate and Significant Effects
Positive
Adverse
Environmental
Cultural
Social
Economic
Relationships
Treaty Principles
At this point tangata whenua should be in a position to give an overall assessment of the application based on the weighting of positive benefits
against adverse risks and costs.
STEP 6. ASSESS WHETHER THE EFFECTS CAN BE AVOIDED, REMEDIED OR MITIGATED.
Regardless of whether tangata whenua reach a position of support or opposition to the application after evaluating the magnitude and range of any
effect (Steps 4 & 5), tangata whenua will be asked, through hui and/or follow-up workshops, if any of the adverse effects identified as moderate or
significant can be avoided, remedied or mitigated.
STEP 7. FRAME RECOMMENDATIONS TO THE APPLICANT.
Once the relationships of tangata whenua to their taonga; the effects of the proposed application on them and the options for avoiding, remedying or
mitigating those effects have been identified, tangata whenua representatives or facilitators can complete the task of framing recommendations to
the applicant (e.g. changes to the activity, conditions, monitoring and ongoing relationships) and clarify whether they support or oppose (in part/all
etc) the application.
STEP 8. REPORT BACK TO TANGATA WHENUA
In order to maintain a transparent and inclusive approach it is essential that the appropriate tangata whenua (eg. iwi, hapu, ahi kaa, pan Maori) have
the opportunity to review the findings of the assessment and the relevance of the recommendations that those representatives faciliating the CIA will
make to the applicant on their behalf.
STEP 9. PRESENT FINDINGS TO THE APPLICANT/ERMA
The final step in the process is to present the findings of this assessment to the applicant. While this will always include a written report, a
verbal/visual presentation allows tangata whenua to discuss the assessment and recommendations with the applicant kanohi ki te kanohi, to clarify
any issues or matters arising from the recommendations and to maintain open channels of communication over addressing the findings. It is further
recommended that the facilitators of the process be present to answer any questions on process. ERMA should also be invited to attend.