RMA fortnightly kōrero27 June 2018 Section 33, Transfer of powers (utopia or not)?The RMA provides the ability for a council to transfer specific powers to an Iwi authority. Section 33 of the Resource management act states that; ”A local authority may transfer any 1 or more of its functions, powers, or duties under this Act, except this power of transfer, to another public authority in accordance with this section”. In effect, a Council can delegate to transfer clearly identified powers to an Iwi Authority. For an iwi, the expectation would be that they would have the authority to decide on consents and plan changes and this authority would be transferred from the council to them. The council would need to agree to the transferral and then carry out a special consultative procedure as prescribed in the Local Government Act, which essentially means a proposal would have to be developed and then opened to the public for submission. Section 33 provides that the local authority that transfers any function, duty or power shall continue to be responsible for the exercise thereof and specifically under section 35 (2) (c) of the RMA councils are responsible for monitoring any functions transferred by it. In theory, section 33 provides an opportunity for Maori to bypass frustrations experienced at the interface with councils under the RMA, however transfers of functions are rare. Some RMA commentators have suggested the following considerations may be a barrier to this section of the act not being used.
Basically the transferring authority must ensure that transfer of powers will provide better efficiency and that the receiving authority has the skills and capability to undertake the functions being transferred. To date six out of 11 regional councils have not transferred functions under section 33. Four regional councils transferred functions and one regional council received, rather than transferred, a function. In 2007 The Bay of Plenty Regional Council received one transfer of powers from the Rotorua Lakes (Formally the Rotorua District Council), this relates to a transfer of Functions, powers and duties of the territorial authority in relation to specified activities for water A and B (eg, moorings and ski lanes, jetties and boat sheds and structures, public ramps and slipways) and for lake structures, activities occurring within lakes A Zone and enforcement. This transfer sought to eliminate duplication, stream line decision making and reduce cross boundary planning frustration. The transfer is working well but it needs to be acknowledged that the success of this transfer agreement is underpinned with significant internal planning knowledge, overarching resourcing ability including monitoring and administration capacity. To date no section 33 transfers (in particular to iwi) have occurred. In 2015 amendments were made to the RMA to add provisions for joint management agreements under sections 36B-36E. This clause differs from section 33 in that it is not a complete devolution of authority but rather allows responsibility for decision making to be shared by the Council and another body. The policy intent is to provide for joint management that enables cooperative arrangements for a community, especially between Iwi and local authorities. These sections also provide for joint agreements between two local authorities. The Bay of plenty Regional Council has two section 36B-36E joint management agreements in Place Te Maru o Kaituna and the Rangataiki are examples of what can be achieved with these types of agreements. For me joint management agreements enable kaitiakitanga for Tangata whenua to be achieved while giving rise to funding availability, non Matauranga knowledge access and administration support. This model differs to the section 33 provision by simply promoting collaboration with out the burden of much of the administration requirements as prescribed in section 33 to Tangata whenua. I have been asked to explore this whaakaroa by some of our ropu members so I hope this fortnight’s kōrero demystifies this section of the act. In short, section 33 provisions may not be the Holy Grail when set aside section 36B joint management arrangements. I hope you enjoyed this issue. As always, and until next time, always remember it's ka pai to RMA kōrero!! Ngā mihi mahana |