What the Manukau claim means in town and country planning terms

Tu Tangata, Issue 27, 1 December 1985, Page 44

What the Manukau claim means in town and country planning terms

na George Asher, Planner advisor

Te whenua

The recent Manukau claim to the Waitangi Tribunal again shows the failure of current legislation, policy and process, to take notice of maori values, interests and perspectives.

This claim, more than any other so far, revealed wide-ranging inconsistencies and inadequacies in approaches adopted to administer and manage resources. These have been of vital and long standing importance to Maori tribal groups and continue to be of central importance to their existence and status as tangata whenua.

Town planning legislation and policies, and the manner in which this process is administered, has attracted similar criticism even though this claim relates primarily to the despoliation of the Manukau harbour and the loss of tribal lands in and around the harbour and the northern Waikato. Town planning cannot escape attention in this context simply because it is the principle means by which certain detrimental uses with specific and cumulative consequences on the Manukau and surrounding lands have been permitted to be established.

Conversely, town planning has been incapable of affording any effective status to established maori traditional uses and interests in lands affected under the claim. These distortions reflect the fundamental monocultural bias of the current system which continues to have a destructive and negative impact on Maori communities.

A reading of the Town and Country Planning Act. 1977 reveals that it contains significant provisions for establishing maori interests within the formal processes of town planning. But the difficulties encountered by many Maori landowners and tribal communities with town planning, highlight the unresponsive nature of the administration, particularly at many local levels, to make a commitment to or even recognise the relevance of Maori interests.

The tribunal findings go some distance toward clarifying this anomaly. For example, counsel for the Ministry of Works and Development argued the potential for positive promotion of maori values within local, regional and maritime planning schemes. It also conceded that the will must first exist to use the available statutory tools to realise these ends. It is worth considering further the im-

plications of those responses from agencies and authorities which alluded to the need in the Manukau claim to balance the interests of other sections of the community. It is clear that other members of the public and of various groups are also affected detrimentally by town planning, but it must also be recognised that the cumulative impact of legislative and policy change in New Zealand has been of far greater detriment to Maori tribal communities than any other identifiable group.

Under these circumstances it would appear grossly unfair to avoid the accordance of any priority to Maori tribal interests.

In the same light those authorities which tend to avoid or. for various reasons, maintain an aversion to according a greater priority to maori interests, are merely perpetrating a situation created by historical processes. It was the belief of one local council which appeared before the Tribunal that the Treaty ‘perpetrates a privilege based soley on race'.

Under the claim presented to the Tribunal it would be extremely difficult to determine the nature and extent of any such privileges forthcoming to the affected parties. The injustices illustrated before the Tribunal make it extremely difficult to comprehend and substantiate the perception of that council. The extent to which legislation and policy should affirm certain interests and values becomes a critical factor in

situations where these interests diverge. Normally differences in interests are resolved through democratic processes of decision-making. Where a divergence of interests and values occurs however, such processes will usually mitigate against the interests of minorities unless a prior commitment or redirection has been established to ensure that such interests are accorded a measure of real priority.

The efforts of some planning authorities to ensure that maori interests are notified to them have been highly commendable. This has been achieved through formal processes of representation and through informal consultations. Indications are that further improvement is required in these processes if greater awareness of maori interests is to be achieved and signified.

In acknowledging the efforts of various authorities (including those outside the town planning process) the Tribunal also drew specific reference to the need lor a greater commitment to research and the development of options to enable effective strategies to be put in place to protect maori interests.

This consideration raises a fundamental question as to who actually plans for Maori people or more precisely, Maori tribal interests.

The imprecise and discretionary nature of many provisions pertaining to maori interests in the Town Planning Act enables authorities to opt out of a real commitment to plan for maori issues if they so desire.

Where maori values are spelt out as matters which must be taken into consideration. they are often only one of many matters to be considered by the administering bodies.

It would appear also that many authorities do not have the capacity to properly assess the many maori matters that are presented to them. This could contribute further to maori values being relegated to a lesser status even where extensive consultations have been carried out with Maori communities in the area.

This incapacity is caused not merely by a deficiency in awareness and understanding but more importantly by a reliance on precedence and on obtaining advice from sources other than the Maori communities concerned.

For example the Tribunal cited the unsatisfactory situation of legislative

authorities narrowly construing maori interests. The Town and Country Planning Tribunal has consistently indicated that ancestral land as stated in the Town and Country Planning Act 1977, refers only to land owned by Maori people, but does not include other lands of significance to them.

The Auckland Regional Authority has taken heed of maori values in its planning decisions but said it has difficulty with the term ‘ancestral land'. It has legal advice that the word ancestral land effectively means maori land. But it feels bound by legal opinion based on decisions of the Planning Tribunal.

These interpretations have been used by subsequent authorities in such a way that they in turn, unduly limited the application of statutory provisions in ways which may not have been intended by the Legislature.

While the Town Planning Act itself has been subject to severe and in most instances, justifiable criticism, it remains one of a small number of statutes which enable maori values to be considered outside of the Maori Affairs Act and its subequent ammendments.

The dearth of important legislation providing for maori values and interests however, rules out the possibility of establishing a consistent and comprehensive approach.

This is necessary to integrate maori considerations in using any resources such as land and water.

Recent administrative proposals from a working report released by the Minister of the Environment hold some promise that a degree of integration may be achieved and that greater consideration is taken of all relevant values.

Another important concern raised by the Waitangi Tribunal relates to the binding of the Crown.

Past experiences indicate the flexibility that the Crown has on this matter and its relative freedom under certain related legislation to be exempt from certain obligations.

Where the Crown is itself a property owner there would appear to be very little reason why it should not be bound by approved planning schemes. As well the findings before the Tribunal in this instance clearly establish a case for maori values to be consistently and adequately recognised as matters of national interest regardless of whether Crown property is affected or not.

Overall the Tribunal has succeeded in giving higher visibility and credibility to maori grievances simply by providing the public forum for their hearing. It has also pointed to the inherent dangers of fragmented approaches to resolve fundamental differences of values and perceptions.

Planning authorities must accept that the findings and recommendations of the Waitangi Tribunal provide guidelines for future planning for Maori people.