April 2001 Contents

WAITANGI TRIBUNAL
Directions - Whakatane sawmill & hazardous substances

OTHER COURTS AND TRIBUNALS
High Court - genetic modification - ERMA decision reviewed

PARLIAMENT
Inquiry into the possible collapse of Lake Omapere
Inquiry into the performance and current operations of the Mäori Trustee
Inquiry into the auditing and monitoring of 'closing the gaps' programmes

WAITANGI TRIBUNAL

Memorandum and Directions of the Waitangi Tribunal
Wai 888, document 2.6, 23 March 2001, Judge Wainwright

In October 2000, Joseph Harawira, Matiaha Kohe and the New Zealand Mäori Council submitted a claim to the Waitangi Tribunal in which they claimed that they had been prejudicially affected by actions and omissions of the Crown and its agencies with the result that sawmill workers and their spouses had died and suffered ill health owing to the use of pentachlorophenate (PCP), dioxins, and other hazardous substances at the Whakatane Sawmill before it closed. The claimants sought an urgent hearing.

The tribunal, however, was not willing to register the claim as it appeared that the claimants had alternative avenues open to them that they ought to pursue first, namely recourse to the relevant councils and/or the Environment Court under the Resource Management Act 1991, and to the relevant health authorities. The Deputy Chairperson of the tribunal, Chief Judge Williams, stated that this was a matter for the tribunal "only when it can clearly be shown that the relevant statutory measures put in place by the Crown are inadequate to address the claimants' concerns, and that their inadequacy is arguably in breach of the Treaty of Waitangi".

The claimants subsequently responded with a letter and other material, including a video of a TV3 documentary investigating the concerns of sawmill workers regarding PCP. They renewed their request for urgency. The claim was then registered and the urgency application delegated to Judge Wainwright to determine.

Held: The application for urgency was declined. It remained the case that there were avenues available to the workers. The tribunal noted that there had been ongoing dialogue between the Whakatane District Council, CCH and local Mäori groups and that the Ministry for the Environment was also involved. It was not clear to the tribunal that the dialogue had run its course. The claimants could make a complaint to the Parliamentary Commissioner for the Environment, who would investigate the matter and they could ask the Medical Officer of Health for the Bay of Plenty to investigate the health of the workers. The claimants also had recourse to the procedures of the Accident Compensation Commission, which covered illness caused by exposure to PCP.

Not only were these alternatives available, but the other bodies were better placed than the Waitangi Tribunal to address the complex scientific and medical issues in question. The material already before the tribunal revealed conflicting expert opinion and "[w]hile this Tribunal is able to inquire into questions of whether the principles of the Treaty of Waitangi have been breached by Crown action, it is not competent to adjudicate between scientists and doctors. The membership of the Tribunal does not include the necessary expertise, because we are not constituted to inquire into specialist subject matter of this kind."

Nor was it clear that there was a Treaty issue involved. The employer was not the Crown, it was not apparent that the statutory and institutional framework provided by the Crown was deficient, and there was no reason to believe that the mill's Mäori workers would have been differently affected than their Päkehä counterparts so far as health effects were concerned. Judge Wainwright noted that:

"In my view, to the extent that PCP contamination arose from the circumstances of employment at Whakatane Sawmill, it is an issue that affects people, rather than Mäori. It is appropriate that the issues are dealt with in a forum that enables the effects on all those who may have been affected by the use of PCP at the Whakatane Sawmill to be considered and (if necessary) addressed."

OTHER COURTS AND TRIBUNALS

Bleakley v Environmental Risk Management Authority (ERMA)AP177/00. 2 May 2001. McGechan, Goddard JJ

In July 2000 ERMA approved by a split decision a proposal to field test cattle whose genetic makeup had been altered by inserting them with a sequence coding for human myelin basic protein, to see if the protein would appear in their milk. The hope was that this milk would assist in research into multiple sclerosis. Ngäti Wairere believed that genetic modification involving different species was contrary to their tikanga, and an interference in the whakapapa (genealogy) and mauri (life force) of both species involved. (See Mäori LR August 2000 p5).

The decision was made under the Hazardous Substances and New Organisms Act 1996 (HSNO) and this appeal was taken under that Act, which allows appeals on matters of law only. Consequently, the decision was "not a vehicle for discussion of the rights and wrongs of genetic engineering from a moral or social standpoint", although the court noted that genetic modification was a controversial topic and currently being examined by a commission of inquiry.

ERMA had already given approval, on a non-notified basis, "a quirk in the legislation", to the development of genetically modify embryos under laboratory conditions. Those embryos were currently in gestation, with births expected from June 2001 onwards. The approval the subject of the appeal was to test the animals in containment. At some later stage permission to release them into the general environment would have to be separately sought.

The research institute (Agresearch) stood on land which had in recent years been transferred to Tainui as part of their Treaty settlement and which had been leased back to the Crown. The institute stood on ancestral lands of the Ngäti Wairere hapü.

ERMA had approved two other genetic modifications for field testing. These were related to casein and beta-lactoglobulin and were not subject to appeal. Only the application relating to human genes was appealed.

In making its decision, ERMA had to:

o Consider the chances of escape of the organisms and it establishing a self sustaining population which could not be easily eradicated.

o Consider whether the beneficial effects of having the organism in containment outweighed the adverse effects if the organisms escaped.

o "Take into account" a number of matters including "the relationship of Mäori and the culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga" (s6(d)) and, separately, "the principles of the Treaty of Waitangi" (s8).

o Apply a detailed methodology established by Order in Council (the HSNO (Methodology) Order 1998) which set out an approach to risk identification, assessment, evaluation and management, with the overall aim of assessing the monetary and non-monetary financial costs and benefits of an application. The legislation required ERMA in its decision to state the criteria in the Act and in the methodology which it had relied upon in reaching its decision.

ERMA's decision
The High Court noted that ERMA had identified as one of the "key issues", risks to Mäori and their culture and traditions with ancestral lands etc and the principles of the Treaty of Waitangi "and in particular the requirement to consult effectively".

ERMA was satisfied that the containment facilities for the cattle were adequate, that if there were any escape the cattle could be readily detected, carcasses and waste products could be adequately dealt with, and there was no risk of entry of material from the cattle into the human food chain (and if they did get into the food chain the material was not a health risk). ERMA put questions about the long term effects of exposure to genetically modified material to one side, since that question would only arise if a general public release were sought.

In terms of issues raised by Ngäti Wairere that genetic modification involving different species was contrary to their tikanga, and an interference in the whakapapa (genealogy) and mauri (life force) of both species involved, the majority decision had noted Ngäti Wairere concerns, and the active protection required by the Treaty of Waitangi, but considered that:

o Spiritual beliefs were different from "taonga" as understood in other cases, and were "not amenable to active protection in the same way as more tangible taonga."

o Neither the Act nor the principles of the Treaty went so far as to require that decisions by ERMA must be made in accordance with Mäori spiritual beliefs, and allow Mäori to determine if research proceeded or not.

o In practical terms, declining this application on spiritual grounds would be a precedent which would mean all other similar applications would be declined in the future.

The minority found that approving the application would not be active protection of Ngäti Wairere beliefs as it would harm their views about whakapapa and mauri. The minority considered that there had been no proper weighing up of this aspect, and no weighing up of the cultural risks against the costs and benefits involved. The risks to the health and well being of Ngäti Wairere were outweighed by the information that would be gained by proceeding with the field testing.

The arguments
The appeal alleged 23 errors of law by ERMA in coming to its decision. Five of those dealt with Mäori and Treaty issues.

The key issues for Ngäti Wairere were that:

o The land on which the research would take place was a taonga of Ngäti Wairere.

o Whakapapa (genealogical links to territory and to all living things) and mauri (roughly, life force, possessed by all things) were taonga in their own right.

o Interference by genetic modification, in particular with human material, was irreconcilable with the cultural and spiritual beliefs inherent in these taonga.

o The effects of interference would be 1) offensive to cultural and spiritual values, 2) desecration of the land - diminishing its use to the iwi in the future, 3) create risks of effects on physical and mental health of individuals (mate Mäori) which could even include deaths.

o ERMA was wrong to consider that a different and higher threshold existed to establish effects and require protection of spiritual/intangible taonga as opposed to physical/tangible taonga. It consequently concentrated on that issue rather than considering the adverse effects on cultural values and Mäori and weighing those against benefits of the proposal.

o Cases under the RMA 1991 (which used similar language to this Act) indicated that Treaty principles were important (Haddon v Auckland Regional Council [1994] NZRMA 49), cultural values must be properly weighed up (TV3 Network Services v Waikato District Council [1997] NZRMA 539) and arguably, that Mäori values must be unaffected unless there is no practicable alternative (Te Runanga o Taumarere v Northland Regional Council [1996] NZRMA 77).

o ERMA was wrong to consider that there was some sort of hierarchy of interests under the 1996 Act so that Mäori spiritual values could not prevail where other requirements of the Act were met. Either there was no hierarchy and Mäori values might prevail in suitable cases, or, if there was a hierarchy, the language of the statute pointed towards a primacy for Mäori interests.

The applicant Agresearch and ERMA and rejected these submissions. Agresearch noted, among other matters, that the requirement was only to "take into account" not "recognise and provide for" - as under the RMA 1991. And Mäori spiritual interests did not have primacy (Watercare Services Ltd v Minhinnick [1998] 1 NZLR 294).

ERMA argued that it did take account of the effects arising from Ngäti Wairere beliefs in that it questioned how widely the particular views of Ngäti Wairere were held within the iwi and had difficulty in understanding how impacts on spiritual beliefs could lead to adverse health effects (mate Mäori) claimed.

McGechan J

Did ERMA limit itself to taonga which were physical?
In terms of its general meaning, "taonga" include spiritual beliefs. It was a specialised term. The evidence presented on its meaning to ERMA and the court was consistent with the "highly persuasive" views of the Waitangi Tribunal expressed in reports such as the Manukau Report. In addition, it was obvious that:

"Beliefs which are central to a culture can be taken as treasured by that culture, even if given human failings they are imperfectly actioned. Concepts such as freedom, honesty, and motherhood are prized within Western culture along with more tangible cultural icons. There is no necessary or rational distinction between the tangible and intangible so far as cultural and societal values are concerned, and that observation is as applicable to Mäori as to any other."

Taonga included intangible spiritual and cultural aspects. Both aspects related to tangible taonga and in their own right. There was no reason to believe that the term was used in any other sense when employed in the Treaty of Waitangi. "[I]t was, after all, a document intending in that particular area to be reassuring to Mäori."

However, the real issue was in what sense Parliament intended taonga to be used when it required in s6(d) that ERMA take into account "the relationship of Mäori and the culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga". Were spiritual taonga catered for already under "culture and traditions" as Agresearch maintained?

His Honour rejected that view on the basis that:

"I think it is highly unlikely that Parliament deliberately would direct the Authority to ignore relationships with intangible taonga. Not only would the distinction have no rational basis, but it would be inconsistent with the Treaty. A suggestion in debate that the Authority should take account of how Mäori felt about a particular hill, but should ignore central concepts such as whakapapa would have caused a debating riot. The greater likelihood is that Parliament simply adopted the otherwise identical provisions contained in s6(e) of the Resource Management Act, adding "valued flora and fauna" for certainty, without appreciating the semantic argument opened up."

This was an "uneasy transplant" since the RMA "for the most part" dealt with physical objects, although "on occasion" Mäori cultural and spiritual beliefs associated with those objects required consideration. But the provision could be given this interpretation (ie including spiritual taonga) without any violence to the ordinary words and phrasing of the provision.

In terms of the ERMA decision, the authority had referred to "taonga which are spiritual in themselves", and had considered cases under the RMA 1991 where there had been an effort to protect the spiritual significance of sites where alternative sites or options for development were open. The majority decision had considered that no alternatives existed in this case, because of the absolute nature of Ngäti Wairere beliefs, which would be affected no matter how the research was carried out (except to conduct the research elsewhere). The majority decision had not denied that spiritual beliefs could be a taonga, rather, it had questioned whether in fact and on a population basis, interference in Ngäti Wairere beliefs could have the widespread effects and harm claimed.

Did ERMA "take into account" spiritual taonga?
What those words meant depended on the context of the particular legislation, so decisions on those words in other statutes (eg s8 RMA 1991), some of which had determined that some actual provision had to be made for the thing to be taken into account, were not directly relevant. In this case the legislation was clear. Matters in s5 were to be 'provided for', those in s6 merely had to be 'taken into account' which means "to consider the factor concerned in the course of making a decision - to weigh it up along with other factors - with the ability to give it, considerable, moderate, little, or no weight at all" in all the circumstances.

This was what the majority had done. It considered the relationship of Mäori to the taonga made up of the spiritual beliefs expressed. It recognised that there was no room for compromise and found that the knowledge to be generated by the field testing was sufficient to justify proceeding and outweighed the impact which would occur on the taonga.

Did ERMA consider that the Treaty requires active protection of spiritual taonga?
The majority decision of the authority found that intangible taonga were not amenable to Treaty protection "in the same way" as tangible taonga. ERMA appeared to have meant that intangible taonga were to be protected, but in a different way or by different methods.

"On the surface, this is true. One protected a faith by suppressing activity which debases it, often an ongoing and difficult process as the Spanish inquisition found out. One protects a cathedral by building a wall around it. However, at a deeper level there is less validity in this statement: in both cases one meets an activity by adopting a means which prevents that activity from succeeding."

The real concern of ERMA was that there was no way of protecting this spiritual taonga in the circumstances in the way that a physical taonga might be protected, and the duty of active protection was to take such action as was reasonable in the prevailing circumstances. To treat that duty in this case as the determining factor - with the consequence that the research would not proceed - would be unreasonable. "The Authority did not say spiritual beliefs were not covered by the Treaty duty of active protection. The Authority, to the contrary, recognised the duty applied, to an extent reasonable in the prevailing circumstances."

It also separately found that the weight to be given to the Treaty (ie "take into account") was outweighed by other matters under s6. That weighing process was open to ERMA under the Act.

Did ERMA fail to consider the adverse effects on taonga of this breach of tikanga Mäori?
The majority decision did look at the adverse effects of the breach of the spiritual taonga when it outlined those effects (damage to metaphysical beliefs and to individual health) and questioned the extent to which those effects would actually be felt and whether they would actually occur. While this questioning might be offensive at a cultural level, it was an "entirely valid scientific inquiry" and was "inevitable", since ERMA should not be expected to proceed on unsubstantiated information if substantiation was available. So ERMA did look at adverse effects - the weight it gave to them was a matter for its discretion.

Did ERMA wrongly determine that Mäori spiritual beliefs can never prevail?
ERMA did not determine that, if all other requirements of the legislation were met, then Mäori spiritual values and beliefs cannot prevail to prevent an application proceeding. That would definitely have been an error of law. Rather, it determined that the adverse effects on Mäori (which ERMA doubted to some extent), which could only be catered for by refusing permission for the activity, were not such as to outweigh the benefits of the applications.

In subsequent cases it might be open for Mäori spiritual beliefs to prevail. For example:

"An application which involved less potential benefit for New Zealand, perhaps by an overseas company unwilling to share the information gleaned, or by a company unable to offer comparable containment, in relation to which Mäori were able to advance better substantiated evidence of potential injury to health, could still be weighed and decided the other way".

Did ERMA fail to consider effects on Mäori other than effects on spiritual beliefs?
ERMA was required to consider all effects, including such matters as the burial or incineration of cattle on Ngäti Wairere ancestral lands. This had occurred. The majority decision noted that disposal by burial would be carried out after consultation with Ngäti Wairere. His Honour also found no substance in a similar ground concerning the disposal of milk from the cows by spraying onto pasture.

On other grounds, His Honour found that ERMA:

o Did consider effects on the community of an escape of the cattle beyond effects on health (whether it looked at them in sufficient depth was another matter).

o Had not been in error in failing to consider issues surrounding the creation of the genetically modified embryos in the first place. There was insufficient detail provided by the appellants to determine how or if it might have failed to consider issues of any "ongoing damage' to the community by the continuing development of the embryos in containment.

o Had made an error of law in its approach to the consideration of s7 and the need for a precautionary approach when considering the likely effects of the escape of the cattle, but that error was not material in its final decision which did consider those effects.

o Had not failed to weigh adverse effects against beneficial effects collectively and cumulatively.

o Had failed to apply and to state the criteria in the methodology which were relied on in reaching its decision. In terms of application of the methodology, there was no mention of the methodology in the overall evaluation in ERMA's decision. The court found that it was "very difficult amidst such silence to feel any confidence the Authority did in fact apply the methodology." This concern was not eased by the novelty of the decision-making process. There were no surrounding circumstances to provide reassurance that the correct approach had been taken. There was also a failure to state the criteria, which was a definite requirement of the Act.

o Had not been in error in its approach to considering the benefits of the research. The Act did not place a presumption in favour of environmental protection at the expense of economic and social development. Nor is there a bias in favour of scientific research per se at the expense of environmental controls. Research with future possible benefits is a matter contemplated by the Act, but effects, safety and the need for caution have to be considered and appropriate controls, which may be "stern' in some cases, put in place by the authority.

o Had not acted in error in the use it made of evidence of a scientific advisor.

o Had considered an irrelevant matter when it concluded that, because Ngäti Wairere's concerns might be shared by other iwi, "in practical terms a decision to decline in this instance would become a precedent for all other transgenic modification applications". ERMA was required to consider each application on a case by case basis. If it found in any case that Mäori spiritual concerns were such that an application should be declined, then the fact that that might be a precedent and an inconvenience for other applications was not relevant to ERMA's decision in this case. That was a matter for Parliament to address. Under the Act, "[D]ecisions are not to be dictated by the desirability or undesirability of outcomes perceived exclusively from the viewpoint of the advancement of science." However, ERMA had already demonstrated that it had reached a sound decision on iwi issues elsewhere in its written decision. This extra comment was an unnecessary overstatement and the error was not therefore material to the final decision which it reached.

o Had not acted in error in the way in which it considered the probability of escape of the cattle and the adequacy of containment measures.

Accordingly, because there was silence in the decision as to the criteria in the methodology which had been relied on and to state those (as required by the Act), ERMA must reconsider the matter, but it was up to the authority to determine whether to receive further submissions or hold further hearings dealing with (for example) any updating material. This was not "inevitably necessary", and the final decision it might come to would not necessarily be different.

Goddard J
In a separate judgment Goddard J agreed with the judgment of McGechan J, but made additional observations. While she agreed that s6(d) included spiritual taonga, she arrived at that result by different means.

Agresearch had contended that s6(d) would be tautologous if spiritual taonga were a separate matter from "culture and traditions" ie something cannot under s6(d) be "at once Mäori culture and taonga".

Her Honour noted that the words culture and traditions were included in the Act to underscore the special nature of the relationship of Mäori, as opposed to any other group, to the matters listed in the provision and to "ensure that the relationship of Mäori with taonga is not read-down, dissipated or minimised by those charged with exercising functions, powers and duties under the Act."

Further, the inclusion of expressions such as waahi tapu illustrate that it was intended that spiritual and physical matters be taken into account. "A waahi tapu has a spirituality which is inseparable from its physical properties" and "valued" flora and fauna are mentioned, to "reflect the intrinsic value to Mäori of certain flora and fauna - it is not the mere physical properties of that flora and fauna which render them important, it is their intrinsic value to Mäori, flowing from the attitude of Mäori towards them, which transforms them into taonga. Consequently, the reference to "other taonga" simply confirmed the wide embrace Parliament intended for the provision, and included spiritual taonga such as whakapapa and mauri as well as other intangible treasures, such as language.

However, Her Honour was also satisfied, like McGechan J, that ERMA had considered things other than physical things to be taonga.

In terms of the argument that ERMA failed to "take into account" the relationship of Mäori with their spiritual taonga, Her Honour agreed with the conclusion of McGechan J that ERMA had done so, but was concerned to consider whether ERMA fully understood the true nature of the philosophical task before it. The minority ERMA report had suggested that no criteria were established to assess the cultural and spiritual risks to Mäori, nor any methodology followed to weigh those risks and relevant costs and benefits.

Given the extensive consultation with Ngäti Wairere which had occurred, "[i]n the end" the issue of whether the majority properly understood Ngäti Wairere's spiritual beliefs "verges on the imponderable". However the majority had applied their best endeavours in attempting to understand those beliefs. The majority had felt unable to assess and weigh purely spiritual matters in the same way as physical issues. They could not assess any adverse effects on health in the absence of any empirical evidence, just as, similarly, they had no clear view on the tangible benefits that might flow from the medical knowledge gained from the research. Since Ngäti Wairere presented a no-compromise approach "the desire to opt for discernible information benefits led to a total impasse, reflecting the collision between spiritual beliefs and scientific understanding", but there had clearly been a proper consideration of Mäori concerns and no error of law.

Her Honour also agreed with the finding that ERMA did recognise the Treaty requirement to actively protect spiritual taonga under s8, but rejected the view that the principle of active protection of spiritual taonga could never mean that decisions under the Act were made in accordance with Mäori spiritual beliefs. Her Honour thought that "Active protection under the Act may, in some cases, require decisions to be made according to tenets of Mäori spiritual belief, where those are significant". That would be determined on a case by case basis.

ERMA had asked for guidance from the Court on how spiritual values could be measured, quantified, weighed and balanced in accordance with the requirements of the methodology and the Act. The situation had to be assessed on a case by case basis, "no blueprint for spiritual values can be developed for slavish application in every case".

Commentary: This is the first High Court appeal from an ERMA decision involving genetic modification. The majority decision has survived (just) in terms of its treatment of Mäori issues.

PARLIAMENT

Inquiry into the possible collapse of Lake Omapere
5 April 2001. Report of the Mäori Affairs Committee

In March 2001, the Maori Affairs Select Committee adopted terms of reference for an inquiry into the health of Lake Omapere, a shallow 1,200 hectare lake near Kaikohe in Northland that is of considerable cultural significance and economic potential for the Ngapuhi people. The largest lake in Northland, its waters, bed and margins were vested in the Lake Omapere Trustees on behalf of all Ngapuhi by the Maori Land Court in 1955. In the past 20 years, the once healthy lake has become so choked with the aggressive exotic weed, Egeria densa, that it now faces environmental collapse. Government intervention in the 1920s and 1930s to lower the lake in order to provide land for the re-settlement of soldiers has aggravated the problems.

Reputable scientific advice suggests that, as result of the concentration of weed, the weedbeds will collapse in autumn 2001 or summer 2002, leading to the spread of a toxic algae bloom. If this occurs all life in the lake will be killed and the decomposition of fauna and flora will contaminate the lake, as well as the fish and shellfish in the Utakura river and the Hokianga harbour, where the lake water flows.

According to the committee, it is possible to intervene to save the lake. It has recommended that:

o The Government take urgent action to ensure that the lake does not suffer ecological collapse.

oThe Ministry for the Environment take primary responsibility for overseeing the project to save it, working with the Northland Regional Council, which has the key operational role.

o The Government instruct Te Puni Kokiri to oversee a timely resolution to outstanding title issues relating to the lake.

o The Government instruct Te Puni Kokiri to the Lake Omapere trustees from its capacity building programme to enable the trustees to meet their responsibilities as trustees.

oThe Government acknowledge that the Department of Conservation (DOC) is not giving effect to s 4 of the Conservation Act 1988 and to direct it to adhere to its statutory obligations.

o The Committee's report was particularly critical of DoC's responses to Lake Omapere's problems.

In 1996, the trustees applied to DOC to introduce 5,400 grass carp into the lake to control the exotic weed. However, DOC did not treat the rehabilitation of the lake as a priority because of the absence of indigenous freshwater plants and fish in the lake.

The committee concluded that in its general attitude towards the future of the lake and the release of carp "At no time did the Department of Conservation demonstrate an adherence to its own policy to actively act in good faith with the Lake Omapere Trustees. The net result of that is that the health of Lake Omapere is in jeopardy. Further we believe that the Department of Conservation is in direct breach of section 4 of its Act", which provides that the Act is to be interpreted and administered so as to give effect to the principles of the Treaty of Waitangi.

The release of carp and legal title to the lake

The committee report stated that DOC had an obligation to approve the release of carp and an obligation to uphold a range of other statutory oversights in regard to conservation involving the lake.

If the option to raise the lake level was adopted, outstanding title issues would first have to be resolved After an investigation by the Native Land Court last century, title to the lake was vested in the trustees with leave for an application to be made to the court at any time for a determination of the exact boundaries of the lake and its area. It was therefore unclear what area of farmland might be affected if the lake level was raised, and whether farmers will need to be consulted. Discussions between Te Puni Kökiri and the Department of Conservation had not resolved these issues.

The committee also noted a proposal from the Far North District Council to advance money to restore the lake in exchange for a guarantee of a supply of drinkable water for 50 years.

The committe recommended that the government charge the Ministry for the Environment with lead responsibility for overseeing the project to save the lake, and instruct Te Puni Kökiri to manage a timely resolution of the outstanding title issues relating to the lake and provide from the capacity building programmeassistance to the Lake Omapere Trustees to enable them to meet their responsibilities as trustees.

"Lake Omapere is more than just a body of water. It is a taonga of immeasurable importance to Ngäpuhi and an asset with the potential to strengthen the whole region. We have been told by various government agencies that taking action to prevent the death of the lake is not within their current priorities. However, even if it is not a priority for any particular agency, saving this lake must be a high priority for the Government as whole. Not only are the consequences of the lake collapsing into a poisonous swamp dire, the benefits of returning the lake to its former state as a 'larder for its people' are great."

Inquiry into the performance and current operations of the Mäori Trustee
Report of the Mäori Affairs Select Committee. April 2001

In its financial review of Te Puni Kökiri (TPK), the committee became concerned about increasing debts owed by the Mäori Trustee. In December 2000 it initiated a report on the trustee. This report is the result.

The main work of the trustee involves leasing Mäori land on behalf of the Mäori beneficial owners for conventional farming uses.

The trustee currently administers approximately 2161 ahu whenua trusts and agencies and 117,344 hectares of Mäori land.

The trustee spends about $100,000 per year attempting to locate beneficiaries of Mäori land in order to facilitate their succession to land interests and pay outstanding balances owed to them. Almost two-thirds of beneficiaries are unlocated, and one-fifth are known to be deceased. In the last financial year 577 beneficial owners were located.

The financial performance of the trustee in recent years has been "mixed". The rates of return on some of the trustee's investments are not as high as they could be.

In the 1999/2000 year, the Crown provided $4.225 million to TPK to meet the costs of providing support to the Trustee, through the services of the Mäori Trust Office. While the Crown expects this funding to be repaid the trustee has not been doing so. As of January 2001, a debt of $37.119 million was owed to the Crown. This debt is growing by between $3.5 million and $4.6 million per year.

According to TPK, the Crown may be obliged to provide funding for the Trustee's activities because:

o The Mäori Trustee is a statutory body, which manages the Crown's Treaty risks in respect of the land tenure system and multiple ownership of Mäori land and uneconomic holdings

o There are ever increasing costs for administration since the land tenure system has created multiple-ownership, aggravated the problems of unlocated beneficiaries, succession issues and land fragmentation.

A review of the role of the Mäori Trustee has been underway for 10 years, with no clear finishing date. Significant governance and accountability issues arise under the current arrangements.

The Mäori Trustee Act 1953 currently provides that the Trustee and Deputy Trustee shall be officers of the Ministry of Mäori Development. This gives rise to a potential conflict of interest for the trustee, who has different obligations to the Crown and to landowners.

Although the trustee receives government funding (from TPK, through the Mäori Trust Office) he is not accountable to Parliament for the financial and service performance achieved with this funding. TPK is accountable to Parliament, and reports on the trustee's financial performance in its annual report. The trustee voluntarily tables his statements of account and service performance in Parliament, but the majority of information tabled reflects the trustee's accountability to beneficiaries, rather than to TPK.

Two general options currently being discussed as part of the review are:

o Establishing the Mäori Trust Office as a Crown Entity

o Establishing the Mäori Trust Office as a separate business unity within TPK, with the Trustee acting as the manager of the business unit.

The committee considered that current arrangements for the Trustee and Mäori Trust Office, with respect to accountability and governance, were unacceptable.

Inquiry into the auditing and monitoring of 'closing the gaps' programmes
15 February 2001. Report of the Mäori Affairs Committee

In February 2000, the government announced a policy known as closing the gaps. The policy, which was allocated $243 million for the 2000/01 to 2003/04 financial years, aimed to draw together programmes that had previously existed between different Government agencies, and to implement new programmes under an overarching rationale. The strategy was centralised under a special Closing the Gaps Cabinet Committee (chaired by the Prime Minister) and Te Puni Kökiri (TPK) was tasked with monitoring and auditing roles, and developing a capacity-building programme for Mäori.

This was not an entirely new policy. The first TPK report into "Progress towards closing social and economic gaps between Mäori and non-Mäori" was released in July 1998 and aimed to provide an overview into progress made over time across the education, employment, economic and health sectors.

In June 2000 the committee had initiated an inquiry into programmes for mainstreaming of services to Mäori. Questions relating to these programmes arose during the financial review of TPK and the regular briefings with TPK that the committee receives. Owing to concerns about delays in establishing benchmarks and confusion over the role of agencies (including TPK) in doing this, the committee decided to initiate a separate inquiry into the auditing and monitoring of closing the gaps programmes. This inquiry into the auditing and monitoring of 'closing the gaps' programmes commenced in December 2000.

This final report raises serious questions about the design of programmes, and ability of government departments to measure outcomes.

Benchmarks
The committee focused on the need to set benchmarks in order to maintain a degree of accuracy and uniformity in auditing and monitoring the programme. Following the Prime Minister's statement in October 2000, closing the gaps is to focus on all "low decile groups". The report concluded that government departments had previously and were still interpreting the policy to incorporate only Mäori and Pacific Islanders. The committee commented, "It is essential for the effectiveness and credibility of the closing the gaps strategy that measurable benchmarks are set and released as soon as possible."

Monitoring
The committee expressed its intention to monitor new strategies which have been adopted by TPK. These have two main dimensions: individual programmes targeted at improving outcomes for Mäori, and the improvement of state sector responsiveness as a whole. In order to achieve this, TPK has established the Social Development Directorate (responsible for ministry's monitoring and effectiveness auditing as well as social policy advice), the Economic Development Directorate (responsible for the delivery of TPK's capacity building programme) and a Mäori Business Facilitation Service.

Capacity Building
TPK has particular responsibility for its own capacity building programme, which seeks to strengthen the ability of individuals, whänau, hapü, iwi, and Mäori organisations and communities to build the structures and skills they need to control their own development and achieve their own objectives. Agency reviews are to be conducted:

"Agency reviews are performed by questioning management, staff and Mäori clients, and gathering documentation, to establish the management expectations and actual evidence of outcomes for Mäori. The questions asked are based on five critical areas that have been identified as being necessary for organisations to perform well. This information is then compared to a generic set of expectations to get a measure of effectiveness. As a result of this process, TPK judges the soundness and responsiveness of processes, and therefore the extent to which they are effective in delivering services to Mäori."

The committee also expressed concern that TPK did not have an external standard for measuring the effectiveness of its own policy advice.

Auditing
While the criteria used to perform effectiveness audits are developed specifically for each audit, the committee suggested that criteria common to all audits that will be performed in the future include:

  • Has the programme met the objectives set for it?
  • Is the programme relevant to Government goals/Mäori aspirations?
  • Is the programme's design logical?
  • Have the situation/views of the client group been taken into account?

The committee emphasised the need for a degree of uniformity in reporting and concluded that they will continue to closely monitor and audit "closing the gaps".

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