Professional Documents
Culture Documents
December
2014
Len
Brown
Mayor
of
Auckland
Private
Bag
92300
Auckland
1142
By
email:
len.brown@aucklandcouncil.govt.nz
Dear
Your
Worship,
2. We
write
to
express
our
concerns
about
the
introduction
of
the
mandatory
requirement
to
seek
cultural
impact
assessments
(CIA)
from
iwi.
The
notified
plan
has
enabled
iwi
to
create
a
resource
consent
process
with
the
power
to
influence
the
outcome
of
resource
consent
applications
affecting
an
undetermined
number
of
property
owners.
We
have
been
contacted
by
a
number
of
citizens
who
are
distressed
to
discover
that
there
is
now
a
requirement
to
seek
a
CIA
from
iwi
before
making
alterations
to
their
properties.
3. We
ask
you
to
neutralise
the
Mana
Whenua
provisions,
at
least
until
you
have
the
recommendations
of
the
Hearing
Panel.
The
CIA
provisions
should
never
have
been
immediately
enforceable.
They
have
had
the
effect
of
a
unilateral
decree.
The
Council
has
admitted
that
many
of
the
sites
are
mistaken.
The
requirements
and
effects
are
very
badly
defined,
they
are
blighting
development
prospects,
exciting
expectations
within
some
Maori
circles
that
can
only
be
disappointed,
and
stirring
up
race
tensions.
4. Our
members
are
participating
in
the
Hearings
process
but
this
will
take
years.
The
provisions
need
to
be
suspended
now.
5. These
rules
make
fundamental
changes
to
RMA
processes,
introducing
a
level
of
restriction
on
property
owners
unseen
before.
We
have
been
told
of
a
professional
valuer’s
view
that
new
subdivisions
will
be
the
most
detrimentally
affected
by
the
purple
circles
and
CIA
requirements.
We
have
been
told
of
an
iwi
authority
bullying
a
property
owner
by
threatening
to
demand
a
CIA.
6. Your
Chief
Planner,
Dr
Roger
Blakeley,
told
the
public
the
CIA
process
isn’t
new,
and
has
been
around
for
years.
Ms
Penny
Pirrit,
the
Council’s
Regional
and
Local
Planning
Manager,
told
a
group
of
230
concerned
citizens
at
a
public
meeting
on
18
October:
In
fact,
there
are
many
other
councils
across
New
Zealand
who
have
adopted
CIA
provisions
for
very
many
years.
So
in
many
respects,
Auckland's
catching
up
with
other
parts
of
the
country.
7. We
have
searched
for
evidence
of
similar
rules
in
other
plans
but
cannot
find
any.
While
CIAs
may
have
been
around
for
years,
this
is
the
first
time
in
New
Zealand
they
have
been
forced
on
property
owners
by
the
Council
and
on
such
a
large
scale.
Associate
Professor,
Dr
Kenneth
Palmer
gave
this
advice:
The
policies
and
rules
relating
to
sites
and
places
of
value
to
mana
whenua,
inserted
at
the
last
minute
in
the
Proposed
Auckland
Unitary
Plan,
which
lists
3600
sites
of
value,
is
a
substantial
extension
of
the
power
of
regulation,
which
does
not
have
any
precedent
in
earlier
district
plans
or
unitary
plans
in
New
Zealand.
8. We
enclose
the
transcript
of
the
part
of
the
meeting
when
Ms
Pirrit
and
Dr
Blakeley
spoke.
Dr
Blakeley
made
it
clear
the
Hearings
Panel
can
direct
the
Council
to
remove
sites
from
the
schedules
or
make
other
recommendations
before
July
2016.
9. If
the
provisions
and
overlays
are
allowed
to
remain
in
effect
during
the
hearing
process
we
fear
the
public
will
lose
confidence
in
the
Council
and
iwi.
10. We
enclose
a
letter
from
Dr
Blakeley
which
was
in
answer
to
a
list
of
50
questions
we
gave
him.
From
this
it
appears:
(a) There
was
no
public
consultation
on
the
sites
and
places
of
value
to
Mana
Whenua
or
the
mandatory
requirement
to
do
CIAs
before
notification.
This
is
in
stark
contrast
to
the
extensive
programme
of
consultation
with
Mana
Whenua
groups.
(b) The
Council
added
the
3600
sites
and
place
of
value
to
mana
whenua
to
the
PAUP
at
the
last
minute
without
even
checking
whether
they
existed
or
whether
they
are
of
any
significance
to
Mana
Whenua.
This
is
disturbing
considering
the
size
of
the
potential
impact
of
this
new
Overlay
on
Aucklanders.
(c) The
Council
made
a
mistake
in
making
the
purple
circles
200m
wide
in
diameter.
The
intention
was
to
only
make
them
100m
wide.
We
agree
with
the
view
expressed
in
the
Archeological
Association’s
submission
on
the
PAUP
that
“the
affected
areas
around
the
sites
are
in
most
cases
far
too
large”.
(d) The
Council
heritage
staff
could
have
checked
these
sites
against
the
Cultural
Heritage
Inventory
to
confirm
the
location
or
the
existence
of
the
site.
They
could
have
done
site
visits.
They
say
they
are
now
doing
a
‘desk
top
review’
but
do
not
have
time
to
do
site
visits.
Considering
the
immediate
effect
of
these
provisions
on
property
values
this
is
surprising.
(e) Despite
the
lack
of
effort
in
determining
the
existence
and
value
of
these
sites,
the
provisions
are
justified
because
of
the
need
to
take
a
“precautionary
approach”.
This
goes
against
case
law
which
suggests
the
precautionary
approach
should
only
be
used
on
a
case
by
case
basis
rather
than
because
the
Council
did
not
have
time
to
do
a
proper
evaluation.
(f) The
Council
acknowledges
that
in
many
cases
the
impact
from
earthworks
on
neighbouring
properties
to
the
site
of
value
is
likely
to
be
minimal.
(g) The
Council
did
not
do
a
proper
cost
benefit
analysis
on
the
Mana
Whenua
provisions
and
does
not
even
know
how
many
private
or
public
properties
are
affected
(they
say
it
could
be
between
4,084
and
18,041
but
it
could
be
much
more).
(h) The
Council
is
amending
the
s
32
analysis
of
the
PAUP
during
the
hearing
process.
Unfortunately
this
is
too
late
to
inform
submitters
and
councillors.
(i) The
Council
is
facilitating
the
CIA
process
but
has
not
provided
property
owners
with
any
protections
against
iwi
having
conflicts
of
interests
or
using
the
process
for
personal
or
commercial
benefit.
(j) The
Council
equates
iwi
representatives
who
do
the
CIAs
to
other
experts
such
as
traffic
engineers.
We
think
there
are
fundamental
differences.
For
instance,
traffic
engineers
base
their
findings
on
transparent,
scientifically
proven
facts
and
are
qualified.
In
comparison,
CIAs
can
be
based
on
unverifiable,
subjective
claims
founded
on
metaphysical
or
spiritual
values,
with
the
opportunity
for
information
to
be
withheld
if
deemed
too
sensitive
to
be
made
public.
There
is
no
requirement
for
the
person
or
people
doing
the
CIA
to
be
qualified
or
even
trained.
(k) The
Council
is
breaching
its
own
rules
by
suggesting
‘practical
solutions’
(i.e.
non-‐
enforcement)
when
it
is
obvious
a
consent
application
should
not
include
Mana
Whenua
issues.
If
the
Council
finds
the
rules
are
impractical
why
are
they
still
in
effect?
11. There
are
clear
practical
and
ethical
problems
with
the
provisions
as
they
stand.
There
are
also
legal
problems.
12. We
enclose
an
opinion
from
our
lawyers,
Franks
Ogilvie,
and
a
memo
from
Dr
Kenneth
Palmer.
Our
lawyers
have
advised
us
the
Council
and
council
officers
would
be
vulnerable
to
a
challenge
in
court.
That
path
would
be
expensive
for
us
all.
In
summary
the
main
legal
points
are:
(a) There
were
flaws
in
the
process
leading
up
to
notification
which
resulted
in
councillors
being
uninformed
and
mistakes
being
made
in
the
PAUP.
(b) The
use
of
the
precautionary
approach
for
the
sites
and
places
of
value
to
Mana
Whenua
is
inappropriate.
(c) The
Council
has
ignored
the
statutory
prohibition
on
forcing
applicants
to
consult
with
third
parties.
(d) There
is
doubt
over
whether
the
Council
should
have
purported
to
give
the
Mana
Whenua
rules
immediate
legal
effect.
13. Democracy
Action
attended
the
009
Hearing
on
Thursday,
20
November.
We
gave
the
Panel
a
proposal
(enclosed)
for
an
alternative
solution
which
would
see
CIA’s
or
something
similar
as
part
of
the
planning
or
scheduling
process
for
sites
when
appropriate.
The
Panel
appeared
to
be
surprised
at
the
mistake
by
the
Council
of
making
the
purple
circles
on
the
Overlay
map
200m
wide.
They
asked
“what
can
the
Panel
do
on
a
mistake”.
The
enclosed
memo
is
in
response
to
that
question
and
offers
an
interim
solution.
14. Democracy
Action
is
advised
that
there
are
powers
to
enable
effective
suspension
of
the
rules
until
the
end
of
hearings.
In
the
meantime,
the
legacy
rules
should
apply.
Yours sincerely
Lee
Short
Democracy
Action
lee@democracyaction.org.nz
Encl.