How local authorities can ensure the Treaty is honoured

Gareth MorganTreaty

The recent furore in New Plymouth around Mayor Andrew Judd is about more than the loss of a progressive local political leader. Mr Judd’s attempt to ensure Maori treaty entitlements are respected highlights an important question – exactly how does a local authority ensure it is both complying with the law and with the treaty? This is an issue facing all local authorities and it is why we have seen a raft of attempts by councils to future-proof themselves against new treaty claims.

Popular opinion and a lack of common knowledge aside, the issue is a major one and, as the Waitangi Tribunal has stated, local bodies daily are breaching the Treaty anew:

With central government stepping back from the national leadership role envisaged in the [Resource Management] Act, interpreting and implementing the legislation has fallen mainly to local authorities. Very few have chosen to use the available mechanisms for delegating powers to iwi or sharing control.” “The RMA, in other words, has not fulfilled its promise. It has not delivered appropriate levels of control, partnership, and influence for kaitiaki in relation to taonga in the environment.(Wai 262 Vol 1,Pg 284, 273)

Readers might recall that when MMP was recommended in 1986 by the Royal Commission it recommended that the Maori seats in Parliament be abolished. However when MMP was subsequently chosen by referendum and introduced the Commission was over-ruled by the government of the day. That decision was no doubt partly (even largely) influenced by the self-interested goal of maintaining Maori voter support.

However, in hindsight, it would have been risky to remove the Maori seats at the time. There was no mechanism other than the as-yet un-tested MMP and the Waitangi Tribunal to ensure Maori rights and entitlements under the treaty would be honoured. Despite retaining the Maori seats and the continued operation of the Waitangi Tribunal, breaches of the Treaty continue to occur, highlighting just how immature New Zealand remains on this issue, and how far we have yet to go.

So we come to the parallel instance with local government, how to deliver the rights created by the treaty for present day Maori. Local authorities are charged with managing those policy areas where Maori treaty entitlements are crystal clear – natural resources.

Once the Treaty is fully encoded in our Constitution – and that road continues to be travelled – then reserved political representation for Maoridom will not be necessary. The sooner that day arrives the better for us all,
Now some councils have followed the lead of the House of Representatives in Wellington – namely, reserving a certain number of Council seats for representatives elected by Maori voters only. The Bay of Plenty Regional Council (3 Maori wards), Waikato Regional Council (2), and the Nelson City Council (1) are those that have taken this path so far, while the Auckland Council has the Statutory Maori Board (9 members) charged with ensuring that council takes into account the view of Maori during its decision-making.

Others such as Masterton District Council have come up with an alternative – reserving positions for iwi on important council committees without having to create Maori-only voting rolls.

New Plymouth District Council is therefore far from being the first to confront the question of how to comply with the law and the treaty in its decision-making. The argument from proponents of Maori representation is that the longer a council flies blind in this area the greater the likelihood it will lose a future treaty claim against it. The ratepayers of the day will of course bear the ultimate price for that.

Now there are a couple of issues that – in light of some of the poor quality objections to Andrew Judd’s initiative – warrant discussion. Firstly the almost asinine response from TV presenter Mike Hosking that if a Maori wants influence then he or she should get themselves elected, like anybody else. Hosking continues to fail to make the distinction between ‘a Maori’ and Maori the treaty signatory (sometimes referred to as ‘Maoridom’). Presumably this isn’t because of ignorance but rather his rejection of the Treaty as central now to New Zealand’s constitution (as reflected in over 300 pieces of legislation and regulation).

This view is held by the Far Right, most frequently enunciated by Don Brash and Muriel Newman and recently promoted via the full page ‘kiwi not iwi’ advertisements which that elite purchased in national newspapers. Suffice to say it’s increasingly a lunatic fringe perspective and not relevant to solving the issues that local authorities face.

The second issue worth canvassing is whether reserved representation for Maoridom on all the political arms of government is the best way to ensure that Maori treaty rights are upheld. As per the discussion Susan Guthrie and myself presented in our 2014 book on the Treaty, “Are We There Yet”, we don’t think it is. Having said that though one has to reluctantly admit that New Zealand still remains too immature on Treaty matters to guarantee that Maori rights will be upheld by all arms of government, and that in the mean time representation is necessary to ensure that. More is the pity.

Once the Treaty is fully encoded in our Constitution – and that road continues to be travelled – then reserved political representation for Maoridom will not be necessary. The sooner that day arrives the better for us all, because Article 3 of the Treaty (which has to be respected in conjunction with Maoridom’s entitlements of Article 2) holds that all New Zealanders (ie; individuals) have the same rights. That’s democracy and we need to get there.

Now back to local authorities and the endeavour to ensure the Treaty is honoured. Addressing three different aspects of the problem could hold the key to an alternative approach;

1: let the big natural resource management issues be sorted by central government policy, not left to local government. It is just not necessary to dump the issue of Treaty compliance vis a vis Article 2 on to local authorities. Central government could mandate specific policies easily enough which local authorities would simply follow. There is room within the RMA to do this now. This was a suggestion made by the Waitangi Tribunal in its Wai 262 report and it’s a good one.

2: for general (ie non-natural resource related) issues dealt with by local government, look at some version of MMP – it is a more representative system than the FPP still prevailing in most local body elections.

3: for specific local issues (eg whether a new road goes through a particular stretch of land) devolve the real decision-making authority to the local community – give the decision away to them. Then resource the small community of interests to resolve the issue among themselves. As an example, on the Mahia peninsular the issue of where to locate a sewage treatment plant came up. Local Maori were very concerned and initiated a community-wide discussion. The end result has been effective, informed, cross-cultural, co-operative community management of environmental issues on the peninsular. This has the full support of the local authority and has been formalized with a memorandum of understanding.

Overall then while local authorities struggle with their treaty obligations, and the moves to Maori representation are an understandable response, there is no guarantee that future breaches will not result. In short it is expecting too much of these bodies to deal with the big natural resource issues in a way that respects the treaty-conferred rights of Maori. Central government is the only body adequately resourced for that and should step up.

How local authorities can ensure the Treaty is honoured was last modified: May 13th, 2016 by Gareth Morgan
About the Author

Gareth Morgan

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Gareth Morgan is a New Zealand economist and commentator on public policy who in previous lives has been in business as an economic consultant, funds manager, and professional company director. He is also a motorcycle adventurer and philanthropist. Gareth and his wife Joanne have a charitable foundation, the Morgan Foundation, which has three main stands of philanthropic endeavour – public interest research, conservation and social investment.