HAWKE’S BAY REGIONAL
COUNCIL
Hearings Committee
2 March
2022
Subject: Appointment of a Hearing Panel for the Tukituki Tranche 2 Resource
Consent Applications
Reason for Report
1. This item seeks the
appointment of a Hearing Panel for the Tukituki Tranche 2 resource consent
applications.
Officers’
Recommendations
2. Council officers recommend
that the Committee appoints three commissioners to hear and decide the
applications lodged by the following parties:
2.1. APP-123563 – Te
Awahohonu Forest Trust
2.2. APP-123991 –
Springhill Dairies Partnership
2.3. APP-123541 – Tukituki
Awa Ltd
2.4. APP-123547 –
Plantation Road Dairies
2.5. APP-123565 and APP-124498
– Papawai Partnership
2.6. APP-123566 and APP-124500
– I&P Farming Limited
2.7. APP-123546 – Buchanan
Trust No. 2
2.8. APP-125281 – Purunui
Trust
Background
/Discussion
3. The Tukituki Tranche 2
applications are for taking groundwater from the Tranche 2 allocation block
that has been set under the Tukituki Plan Change to the RRMP. There are eight
applicants applying for the total of 15 million cubic metres of water per year across
the two Ruataniwha plain zones. There are 65 submissions lodged.
Options
Assessment
4. If a resource consent
application is notified and submissions are made then, unless the
submitters’ issues can be resolved informally, a Hearing will be
required. The Hearing Panel should comprise members with experience and
expertise relative to the issues arising from the proposal.
5. The following have been
contacted and are available to sit on this hearing panel.
5.1. Paul Cooney (chair of the
HBRC gravel application hearing)
5.2. Brett Cowie (member of the
TANK hearing panel)
5.3. Tony Petch (groundwater
scientist) (cv attached)
5.4. Rau Kirikiri (commissioner
for WDC and HBRC gravel hearing)
5.5. Antoine Coffin
(commissioner for TANK hearing)
Considerations
of Tangata Whenua
6. The activity applied for will
impact on Tangata Whenua interests and values and Tangata whenua are submitters
to the applications. Tangata whenua submitters have expressed concerns about
the effect of takes on river flows, on the mana and wellbeing of the awa and of
the local people. They have identified their responsibilities as kaitiaki and
have pointed to the NPS FM concept of Te Mana o te Wai as being an important
consideration. They are also concerned at the cumulative effects of these takes
on indigenous species and on ecosystem health.
7. A panel member with an
understanding of tikanga Māori and of the perspectives of local iwi and
hapū has been recommended to sit on the Panel.
Financial and Resource Implications
8. The cost of this Hearing
will be borne by the applicants.
Decision Making Process
9. Council and its committees
are required to make every decision in accordance with the requirements of the
Local Government Act 2002 (the Act). Staff have assessed the requirements in
relation to this item and have concluded:
9.1. The decision does not significantly
alter the service provision or affect a strategic asset, nor is it inconsistent
with an existing policy or plan.
9.2. The use of the special
consultative procedure is not prescribed by legislation.
9.3. The decision is not
significant under the criteria contained in Council’s adopted
Significance and Engagement Policy.
9.4. The persons affected by
this decision are all persons with an interest in the region’s management
of natural and physical resources under the RMA.
9.5. Given the nature and
significance of the issue to be considered and decided, and also the persons
likely to be affected by, or have an interest in the decisions made, the
Committee can exercise its discretion and make this decision without consulting
directly with the community in accordance with its Terms of Reference.
Recommendations
That the Hearings Committee:
1. Receives and considers the
“Appointment of Hearing Panel for the Tukituki Tranche 2 Resource
Consent Applications” staff report.
2. Agrees that the decisions
to be made are not significant under the criteria contained in Hawke’s
Bay Regional Council’s adopted Significance and Engagement Policy, and
that the Committee can exercise its discretion and make decisions on this issue
in accordance with its Terms of Reference.
3. Appoints the following
commissioners to hear and decide on resource consent applications APP-123563,
APP-123991, APP-123541, APP-123547, APP-123565, APP-124498, APP-123566,
APP-124500, APP-123546, APP-125281:
3.1. Brent Cowie/Paul Cooney
(back up)
3.2. Tony Petch
3.3. Rau Kirikiri or Antoine
Coffin (one as back up).
4. Confirms that the
commissioners are appointed under section 34A of the RMA and are delegated
authority under RMA sections 37, 37A, 39, 39AA, 40 41, 41A, 41B, 41C, 41D, 42,
42A, 103B, 104 -108, 108A, 108AA, 109, and 113 - 115 to hear, consider and
decide the applications and submissions.
Authored by:
|
Amelia Longley
Consents
Planner
|
Malcolm Miller
Manager
Consents
|
Approved by:
|
Katrina Brunton
Group
Manager Policy & Regulation
|
|
Attachment
|
1
|
Curiculum vitae - Tony Petch
|
|
Under Separate Cover
|
HAWKE’S
BAY REGIONAL COUNCIL
Hearings Committee
02 March
2022
Subject: Appointment of a Hearing Panel for the Ravensdown Resource Consent
Applications
Reason for Report
1. This item seeks the
appointment of a Hearing Panel for the Ravensdown resource consent
applications.
Officers’
Recommendations
2. Council officers recommend
that the Committee appoints four commissioners to hear and decide the resource
consent applications lodged by Ravensdown Ltd.
Background
/Discussion
3. The Ravensdown applications
APP-126684 are for the discharge of contaminants to air; the discharge of
stormwater to land, the discharge of stormwater to water; vegetation clearance
and soil disturbance activities in the Coastal Margin associated with the
erection, reconstruction, placement, alteration, extension, removal, or demolition
of stormwater and process water treatment and discharge structures and wetland
restoration activities; and the taking of groundwater.
4. Twelve submissions have
been received. The main concerns raised by submitters are around the effects of
the stormwater discharge to land and water on the receiving waters and on
cultural values associated with these waters.
Options
Assessment
5. If a resource consent
application is notified and submissions are made then, unless the
submitters’ issues can be resolved informally, a Hearing will be
required. In this case Ravensdown did engage with the majority of the
submitters prior to lodging their applications and may wish to continue this
with a prehearing before advancing to a hearing.
6. The Hearing Panel should
comprise members with experience and expertise relative to the issues arising
from the proposal. In this case the issues are effects of the discharge to air,
effects of discharges to land and water on water values and tangata whenua
values, the effects of works on the Tutaekuri River and Waitangi wetland.
7. The following have been
contacted and are available to sit on this Hearing Panel.
7.1. Councillor Martin Williams
7.2. Rau Kirikiri (commissioner
for WDC and HBRC gravel hearing)
7.3. Louise Wickham – air
quality scientist (commissioner for Te Mata Mushrooms)
7.4. Malcolm Green –
expertise in river processes/effects on river ecosystems and water quality.
Considerations
of Tangata Whenua
8. The activity will impact on
Tangata Whenua interests and values and Tangata whenua are submitters to the
applications. Tangata whenua submitters have raised concerns about and
seek an approach which provides greater mana whenua recognition and provision.
One submitter seeks “adequate conditions that acknowledge mana whenua
values, rights and responsibilities are incorporated within the consent
conditions”.
9. A panel member with an
understanding of tikanga Māori and of the perspectives of local iwi or
hapū has been recommended to sit on the panel. Staff have recommended Rau
Kirikiri who has provided this service for a number of hearings in
Hawke’s Bay. There is discussion that more opportunity should be given to
local Māori experts to sit on consent hearings panels. The Hearings
Committee may wish to consider whether there are other local people who could
fill this role.
Financial and Resource Implications
10. The cost of this Hearing
will be borne by the applicants.
Decision Making Process
11. Council and its committees
are required to make every decision in accordance with the requirements of the
Local Government Act 2002 (the Act). Staff have assessed the requirements in
relation to this item and have concluded:
11.1. The decision does not
significantly alter the service provision or affect a strategic asset, nor is
it inconsistent with an existing policy or plan.
11.2. The use of the special
consultative procedure is not prescribed by legislation.
11.3. The decision is not
significant under the criteria contained in Council’s adopted
Significance and Engagement Policy.
11.4. The persons affected by
this decision are all persons with an interest in the region’s management
of natural and physical resources under the RMA.
11.5. Given the nature and
significance of the issue to be considered and decided, and also the persons
likely to be affected by, or have an interest in the decisions made, the
Committee can exercise its discretion and make this decision without consulting
directly with the community in accordance with its Terms of Reference.
Recommendations
That the Hearings Committee:
1. Receives and considers the
“Appointment of Hearing Panel for the Ravensdown Resource Consent
Applications” staff report.
2. Agrees that the decisions
to be made are not significant under the criteria contained in Hawke’s
Bay Regional Council’s adopted Significance and Engagement Policy, and
that the Committee can exercise its discretion and make decisions on this issue
in accordance with its Terms of Reference.
3. Appoints the following
commissioners to hear and decide the resource consent applications APP-126684
to undertake activities associated with the
Ravensdown Fertiliser plant at Awatoto:
3.1. Councillor Martin Williams
3.2. Rau Kirikiri
3.3. Louise Wickham
3.4. Malcolm Green.
4. Confirms that the commissioners
are appointed under section 34A of the RMA and are delegated authority under
RMA sections 37, 37A, 39, 39AA, 40 41, 41A, 41B, 41C, 41D, 42, 42A, 103B, 104 -
108, 108A, 108AA, 109, and 113 - 115 to hear, consider and decide the
applications and submissions.
Authored by:
|
Amelia Longley
Consents
Planner
|
Malcolm Miller
Manager
Consents
|
Approved by:
|
Katrina Brunton
Group
Manager Policy & Regulation
|
|
Attachment/s
There are no attachments for this
report.
HAWKE’S
BAY REGIONAL COUNCIL
Hearings Committee
02 March
2022
Subject: Conflict of Interest Management for Tangata Whenua Commissioners
Reason for Report
1. This report presents
proposed guidance for the management of conflicts of interest for local
Māori commissioners for the Committee’s feedback and support for
implementation.
Officers’
Recommendations
2. Council
officers recommend that the Hearings Committee considers the proposed guidance
and how it can support the involvement of more local tangata whenua as Resource
Consent Hearing Commissioners, and provides any additional feedback to enable
its implementation.
Executive
Summary
3. The Hearings
Committee recognises the need for local tangata whenua to sit as commissioners
on resource consent Hearings Panels. This discussion looks at potential
conflicts of interest and how these can be avoided. Legal advice and staff
guidance is provided.
Background
4. At the previous
Hearing Committee meeting, the members noted that they wished to see local
Māori appointed onto resource consent hearings panels more often. This
raised the question of what happens when hapū, Taiwhenua, Post Settlement
Group Entities (PSGEs) or Ngāti Kahungunu Iwi Inc (NKII) or other iwi are
submitters to an application and when is a person conflicted because of their
association with any of these groups such that they should not sit on the panel
to decide the matter?
5. The Hearings
Committee requested that this matter be brought to the Māori Committee and
Regional Planning Committees to discuss and seek guidance on appointing
Māori experts as commissioners for resource consent hearings and on
determining when a person might be conflicted in this situation. The Resource
Management Act provides for hearings for resource consent applications where
they are notified, submissions are lodged, and submitters wish to be heard.
6. The proposed Guidance has
been discussed at the Māori Committee and Regional Planning Committee
(RPC). Both committees supported the recommendations. The RPC members advised
that there were some points that they would like to add to the report. Staff
have not received these points prior to this report and have not been able to
discuss them. It is hoped that there will be opportunity to do this at the
Hearings Committee meeting.
7. A second observation was
that there is a limited pool of Making Good Decision qualified with expertise in tikanga Māori and in Māori
values (a Māori expert)Māori experts in Hawke’s Bay and
a need to build capacity.
Discussion
8. The Hearings
Committee is delegated the function of appointing commissioners to each
Resource Consent Hearings Panel. These may be Councillors or other Council
committee members, or they may be independent appointees. They are required to
have current Making Good Decisions (MGD) accreditation.
9. Typically,
staff have recommended, and the Hearings Committee have appointed a panel
comprising of a commissioner with RMA expertise, a commissioner with technical
expertise relevant to the proposal and a commissioner with expertise in tikanga
Māori and in Māori values (a Māori expert). On occasions a
resource consent application could be heard by a single commissioner where the
issues are narrowed down to a few matters and on other occasions the panel
could be made up of more than three commissioners.
10. There is no
legislative requirement to consult with tāngata whenua when appointing
commissioners to a resource consent Hearing Panel. However, the HBRC Hearing
Committee is made up of four Councillors and two appointees from the Māori
Committee and two tāngata whenua representatives from the Regional
Planning Committee so by its constitution, the Hearing Committee provides the
opportunity for consultation with and involvement of tāngata whenua. In
doing so, tāngata whenua representatives are able to provide guidance and
recommendations on when to appoint someone with understanding of tikanga
Māori and of the perspectives of local iwi or hapū, and who would be
suitable.
11. It is
recognised that at times there may be conflicts of interest and it is this
matter that is discussed in this report.
Options
Assessment
12. Staff have
sought advice from Simpson Grierson on this matter. The essence of this advice
(attached and following) is that basic conflict of interest principles should
apply. People appointed as commissioners should not hold a bias or an apparent
bias nor should they predetermine the matter. Where there is doubt about
whether a conflict of interest exists, it can be prudent to err on the side of
caution and to look to another appointee.
13. Where the
person is a member of an iwi/hapū or can whakapapa to parties involved in
the hearing process, this alone will not necessarily raise a conflict of
interest. The Office of the Auditor General Managing Conflicts: A Guide
for The Public Sector provides guidance. This states:
13.1. Some cultures,
including Māori culture, have a broad concept of family. In our view, a
conflict of interest will not often arise where the connection is a common
ancestor, such as another iwi or hapū member. Sometimes an iwi connection
could create a conflict of interest in and of itself. For example, if the
person is working for a public organisation on a Treaty settlement where they
are likely to end up as a beneficiary, this might create a conflict of
interest. In this situation, the interest is personal.
14. The advice
recommends that conflicts of interest will need to be assessed on a
case-by-case basis. The following circumstances are identified as risk factors
for conflicts of interest or apparent bias:
14.1. If the commissioner has an
official role like as a trustee or director of an iwi entity making an
application or submission or was a senior member of the iwi
14.2. If the hearings panel is
asked to adjudicate on issues of who holds mana whenua over an area and the
commissioner is a member of one of the iwi involved
14.3. If the commissioner has a
financial or property interest in the matter
14.4. If the commissioner assisted
the iwi with the application or submission
14.5. If there are significant
and/or direct impacts on the commissioner’s iwi.
15. The advice identifies risk
mitigation measures. These include:
15.1. preparing a longlist of
commissioners so there is choice and alternatives
15.2. recording the interests of
commissioners on the list to help determine risk of conflict
15.3. consider providing training
to help potential commissioners to identify risks of conflict
15.4. set out in the contract
brief the need to avoid conflict
15.5. engage with Commissioners
at appointment stage to check on any financial, property, relevant family ties
(including whakapapa) and any other roles they hold (such as directorship or
trustee roles)
15.6. declaring possible conflict
at the time it is realised and testing acceptance of other parties
15.7. recusing appointment if
possible, conflict is identified and/or not accepted or dismissed as a concern
by other parties.
16. While some recommendations
are made, the Regional Planning Committee members may have other ideas about
how this can be done differently and/or more effectively.
17. The approach going forward
can be improved to enable MGD qualified Māori Committee and Regional
Planning Committee members and other local tangata whenua more opportunity to
sit on hearings panels. Further training could be arranged for potential
commissioners if this is seen as beneficial (over and above the Making Good
Decisions training).
18. It is proposed that the
following staff guidance be followed for all potential commissioners. Specific
questions are identified for Māori experts to check that they are not
conflicted due to their association with their iwi or hapū.
Proposed
guidance for staff when recommending commissioners for appointment
19. Proposed guidance for
appointment of commissioners who are Māori experts:
19.1. Prepare a longlist of local
people with Making Good Decisions accreditation and with Māori expertise.
19.2. Check with each potential
commissioner that they don’t perceive a conflict of interest. The
questions to be asked of Māori experts would
include:
19.2.1. Do you have an official
role (e.g. trustee, director or senior member of an iwi / hapū or other
entity making an application or submission on the application)?
19.2.2. If the Hearing panel is
asked to adjudicate on issues of who holds mana whenua over an area, are you a
member of one of the iwi / hapū involved?
19.2.3. Do you have a financial or
property interest in the matter?
19.2.4. Have you assisted the iwi
with the application or submission?
19.2.5. Are there significant
and/or direct impacts on your iwi / hapū or other entity of which you are
a trustee, director or senior member?
19.3. Appoint a backup person in
case the first person is unavailable closer to the time of the Hearing. This is
standard practice for all commissioner appointments (where practical).
19.4. Include a clause in the
contract (where one is required) informing the pending Commissioner that they
should be familiar with the Auditor-General’s “Managing Conflicts:
A Guide for the Public Sector” and that they will be required to sign a
declaration that confirms that they do not consider they have any conflict of
interest prior to the Hearing. This is required for all commissioners on the Panel.
19.5. Require, prior to
commencing a Hearing, that Commissioners complete a Declaration of Interests
form to confirm that they have considered their interests in relation to the
application and the parties involved and that they do not have a conflict of
interest. This is standard practice for all commissioner appointments.
Examples
from other areas
20. The advice from Simpson and
Grierson refers to Joint Management Agreements established between
Tūwharetoa Māori Trust Board and Taupo District Council (2009) and
also between Te Rununganui O Ngāti Porou Trustee Ltd and Gisborne District
Council (2015) and a mana whakahono a rohe or iwi participation arrangement
between Poutini Ngai Tahu and West Coast Regional Council (2020). These
establish joint management agreements across a range of matters including the
appointment of consent hearing commissioners.
21. Taupo and Gisborne
agreements have the same conflicts of interest clause:
21.1. Conflicts of Interest shall
be considered and identified at the earliest possible moment and brought to the
attention of the Panel at the earliest possible time, and in accordance with
the Controllers and Auditor Generals Guidelines: Managing conflicts of
interest: Guidance for public entities.
22. The Gisborne agreement adds
a second paragraph:
22.1. A panel member is not
precluded by the Local Authorities (Members' Interests) Act 1968, or any other
regulatory mechanism, from discussing or voting on a matter merely because the
member has Ngāti Porou whakapapa. The conflict would have to be direct
e.g. ownership of land that is subject to a consent application.
23. The West Coast protocol
addresses conflict of interest with the following statement:
23.1. Where perceived conflicts
of interest arise in relation to hearing commissioner appointments, the Parties
agree that a registered Ngāi Tahu tribal member who is trained as a
hearing commissioner will continue to sit on the hearing panel on matters related
to Poutini Ngāi Tahu rights, interests and values, and that their
Ngāi Tahu whakapapa does not in itself constitute a conflict of
interest. It should be noted that the principles of fairness and natural
justice apply to all hearings.
24. These statements incorporate
and reflect the Auditor General’s guidance. The West Coast protocol is
saying that if someone is conflicted, they will be replaced by another person
who is a registered Ngāi Tahu tribal member.
Strategic
Fit
25. The Strategic Plan
emphasises the need to work together. Representation of local tāngata
whenua on Consent Hearings Panels will assist in making decisions that align
with desired outcomes expressed in the Strategic Plan and in the RMA suite of
documents that HBRC implement.
Significance
and Engagement Policy Assessment
26. This is not a change of
policy. Resource consent applications can be small to major in effect. Effects
on Tāngata whenua values and relationships must always be taken into
account. Commissioners with expertise in tikanga māori and in Māori
values have been appointed to Hearing Panels in the past. This discussion is
around achieving more involvement of local people with expertise in tikanga
Māori and in māori values in the decision-making process while
avoiding any conflicts of interest.
Considerations
of Tāngata Whenua
27. As mentioned
above this discussion is around achieving the involvement of local people with
expertise in tikanga Māori and in Māori values as commissioners on resource consent Hearing panels. The
aim is to develop options to facilitate their appointment while ensuring that
they do not have a conflict of interest.
Financial
and Resource Implications
28. There are no
financial and resource implications for the Council. Hearing Commissioners are
paid for their time and costs associated with preparing for, attending and
deciding on a resource consent application. These costs are recovered from the
applicants.
Decision Making Process
29. Council and its committees
are required to make every decision in accordance with the requirements of the
Local Government Act 2002 (the Act). Staff have assessed the requirements in
relation to this item and have concluded:
29.1. The decision does not
significantly alter the service provision or affect a strategic asset, nor is
it inconsistent with an existing policy or plan.
29.2. The use of the special
consultative procedure is not prescribed by legislation.
29.3. The decision is not
significant under the criteria contained in Council’s adopted
Significance and Engagement Policy.
30. Given the nature and
significance of the issue to be considered and decided, and also the persons
likely to be affected by, or have an interest in the decisions made, Council
can exercise its discretion and make a decision without consulting directly
with the community or others
having an interest in the decision.
Recommendations
1. That the Hearings Committee
receives and considers the “Conflict of Interest Management for
Tangata Whenua Commissioners” staff report and feedback provided to
staff by the Māori and Regional Planning committees.
2. The Hearings Committee
recommends that Hawke’s Bay Regional Council:
2.1. Agrees that the decisions
to be made are not significant under the criteria contained in Council’s
adopted Significance and Engagement Policy, and that Council can exercise its
discretion and make decisions on this issue without conferring directly with
the community or persons likely to have an interest in the decision.
2.2. Supports the
involvement of more local tangata whenua as Resource Consent Hearing
Commissioners.
2.3. Supports the
proposed guidance to avoid conflicts of interest (with agreed amendments
incorporated if required).
Authored by:
|
Malcolm Miller
Manager
Consents
|
|
Approved by:
|
Katrina Brunton
Group
Manager Policy & Regulation
|
|
Attachment/s
|
1⇩
|
Simpson Grierson Tangata Whenua
Conflicts of Interest Guidance
|
|
|
|
2⇩
|
List of local tangata whenua Making
Good Decsions qualified Hearings Commissioners
|
|
|
