Infrastructure, development and primary sector national direction

In recent years, many whānau Māori have become interested in returning to live on ancestral land in papakāinga. ‘Papakāinga’ can be defined in many ways but is usually understood to refer to a communal settlement on ancestral land.

Planning rules do not always reflect the needs of Māori land owners who want to develop multiple dwellings and perhaps some non-residential activities on communal land. This is especially true in rural zones where plans often permit only one home per lot. Specific planning provisions are needed to enable papakāinga and provide opportunities to live on ancestral land.

Provision for the development of papakāinga in district plans is variable, if it exists at all. This restricts the ability of many whānau, trusts and incorporations to develop papakāinga on their land, and misses opportunities to:

• increase the supply of affordable housing
• enable the development of whenua Māori
• support positive social and economic outcomes.

The relationship between Māori and their culture and traditions that involve ancestral lands, water, sites, wāhi tapu and other taonga is a matter of national importance under section 6 of the RMA. The inconsistent provision for papakāinga in district and unitary plans is preventing Māori land owners from using their land to house their whānau, exercise autonomy over their whenua and build wealth.

The proposal is for new National Environmental Standards for Papakāinga (NES-P). An overview of this proposal is outlined below, and more detailed proposed provisions are available in attachment 1.7 of this document.

The proposed NES-P is intended to enable papakāinga by providing a nationally consistent planning framework. The proposal permits a limited scale of papakāinga development (up to 10 homes) on certain types of land in rural zones, residential zones and Māori-purpose zones. The proposed NES-P includes some rules to protect the environment and health and safety of residents, so a consent required under a regional plan might still be required.

The permitted activity status would apply on categories including, but not limited to:

• Māori freehold land
• Māori customary land
• Māori reservations and reserves
• former land that was compulsorily converted under the Māori Affairs Amendment Act 1967
• returned land taken for public works.

Broadly speaking, these are land categories where the owners have an ancestral connection to the land, and where the land has remained in the ownership of the original owners and their descendants.

Certain non-residential activities ancillary to the residential activities of the papakāinga are proposed to be permitted, including:

• commercial activities (of up to 100 square metres) and conservation activities
• visitor accommodation for up to eight guests (this limit would not apply to manuhiri staying on a marae, as no change to marae activities is proposed)
• educational and health facilities
• sports and recreation activities
• marae, urupā and māra kai.

Papakāinga enabled by the proposed NES-P will be a permitted activity, subject to the following permitted activity standards:

• building coverage to be a maximum of 50 per cent of the site
• in residential zones, minimum setback of 1.5 metres from front boundaries and 1 metre from all other boundaries
• in rural zones, minimum front and side setbacks of 3 metres
• in Māori-purpose zones, minimum front and side setbacks will be the same as the underlying zone.

The proposal is for certain rules and standards in the underlying zone to continue to apply, to maintain protection for the natural environment and for the health and safety of people and communities. Existing rules and standards in district, regional and unitary plans not affected by this proposal include setbacks from waterways and rail corridors, building height, earthworks, permeable surfaces, lighting, noise, accessways, wastewater, water supply, natural hazards, relocatable buildings and green infrastructure.

The proposal is for a resource consent process for a restricted discretionary activity to apply to other, smaller-scale papakāinga that do not meet all the permitted activity standards, have between 11 and 30 residential units or that are proposed to be located on Treaty settlement land.

The proposal is that a resource consent process for a discretionary activity will apply to larger-scale papakāinga developments of more than 30 residential units.

Where the papakāinga development is on Treaty settlement land, the proposed NES-P requires applicants to demonstrate that the land will remain in Māori ownership in the long term. This is due to fewer restrictions applying to subsequent subdivision and sale of this land for housing, compared with the other land categories described above.

The proposal is that district plan rules for papakāinga can be more lenient than the NES-P.⁶⁵ This would give local authorities the flexibility to work with mana whenua to develop bespoke papakāinga provisions if they wish, or to retain existing rules that are more enabling than the NES-P.

^{65 As provided in section 43B(3) of the RMA.}

Table 9 outlines the anticipated impacts of the NES-P proposal on various parties, with more detail available in the Interim Regulatory Impact Statement: Enabling papakāinga in Resource Management on the Ministry for the Environment’s website.

Table 9: Overview of anticipated impacts of the proposed NES-P

The Minister Responsible for RMA Reform considers the proposals to be consistent with the purpose of the RMA because they:

• support people and communities to provide for their social, economic and cultural wellbeing by providing consistent rules enabling Māori land owners to use their land to develop and live in papakāinga communities
• provide consistent rules for papakaīnga development that support the health and safety of Māori land owners while maintaining protection of land and the natural environment.

By reducing or removing consent processes, the proposed NES-P would facilitate the development of housing on Māori land. This would support Māori land owners to exercise mana or authority over their land and kāinga (consistent with Article 2 of the Treaty of Waitangi / Te Tiriti o Waitangi) and contribute to addressing inequities in housing outcomes (consistent with Article 3).

We do not consider any Crown commitments to iwi in Treaty settlements will be directly affected by the proposed NES-P.

The proposed NES-P will have immediate enabling effect nationally. However, achieving this immediacy and certainty involves a trade-off, in that the new NES-P would:

• override more stringent or restrictive existing local papakāinga provisions (which may have been developed in consultation with tangata whenua)
• limit the scope of future district plan provisions (as only district plan rules that are more lenient or enabling than the NES-P would be allowed)
• reduce the likelihood that iwi will be informed about small papakāinga developments.

We have undertaken targeted engagement on this trade-off, receiving mixed feedback. Some whenua owners said they would prefer certainty and noted that, in practice, iwi and hapū have limited influence on district plan rules. Other iwi indicated that the ability to influence the rules in their tribal area is very important.

Consultation will be necessary to test whether iwi, hapū and other Māori groups have concerns about the proposal or any perceived impacts on sites of significance to Māori, marae, Māori land, land returned under Treaty settlements or other matters of significance to Māori groups.

With the exception of leniency provisions, nothing in the proposal provides further direction on implementation other than existing direction in the RMA, which is described in section 4 of this document.

The proposed NES-P enables existing district plans to retain rules that are more lenient (or to include new such rules through a Schedule 1 plan-making process).⁶⁶ If a local authority decides to change its plans to be more lenient than the NES-P, Schedule 1 of the RMA requires councils to consult tangata whenua as part of any such plan-change process.

^{66 Schedule 1 of the RMA provides for the preparation, change and review of policy statements and plans.}