Who is an authorised representative of iwi?
Who is an authorised representative of iwi?
Monday 4 November, 2024
The Court of Appeal has provided guidance to councils and resource consent applicants to correctly identify authorised representatives of iwi.
Ngāti Paoa Trust Board (Trust Board) appealed a High Court decision on its judicial review (Ngāti Paoa Trust Board v Auckland Council) of decisions made by the Auckland Council (Council) (and the Environment Court in turn) regarding an alleged error in Council’s decision. The alleged error was a failure to recognise the Trust Board as the authorised representative of the Ngāti Paoa iwi for notification purposes under the Resource Management Act 1991 (RMA). This meant that, instead of notifying the Trust Board of resource consent applications that affected the Ngāti Paoa iwi, the Council had instead notified Ngāti Paoa Iwi Trust (Iwi Trust).
The Court of Appeal found that Council should not have relied on its understanding that authority to represent the iwi had been transferred from the Trust Board to the Iwi Trust via a resolution. The Council should have instead relied on the order under s30 of the Te Ture Whenua Maori Act 1993 (s30 order) that declared the Trust Board to be the authorised representative.
A s30 order is designed to provide certainty as to the authorised respresentative of an iwi for notification purposes under the RMA. Councils should rely primarily on a s30 order to identify the authorised representative. If another party approaches a council claiming to have had that authority transferred to them, councils should inform the party that the s30 order remains operative and binding and that they need to apply to the Māori Land Court to review the s30 order. The onus is then on that party to apply to the Court to review the s30 order.
The Court of Appeal found that Council’s error in this case did not result in the Environment Court making material errors in its subsequent assessment of cultural values because the resource consent applications were publicly notified and the Trust Board could have made a submission. However, incorrectly identifying the authorised authority could have lead to material errors in other cases. Incorrect identification could be a particular issue where limited notification is applied to an application under the RMA or comments are sought from prescribed persons under the fast-track regime.
This case highlights the importance of identifying the correct authorised iwi representative for both councils and resource consent applicants.
