January 2014 Māori Law Review

Urgent inquiry into reform of the Māori Community Development Act 1962

Memorandum - Directions in the New Zealand Māori Council Māori Community Development Act Claim

Waitangi Tribunal (Wai 2417, 2.5.8)

24 December 2013

The Waitangi Tribunal will inquire urgently into the process adopted by the Crown for the reform of the Māori Community Development Act 1962, under which the New Zealand Māori Council and the Māori Wardens are governed.

Download Memorandum - Directions in the New Zealand Māori Council Māori Community Development Act Claim here (544 KB PDF).

Overview and result

Urgent inquiry into reform of the Māori Community Development Act 1962
Date 24 December 2013
Case Memorandum - Directions in the New Zealand Māori Council Māori Community Development Act Claim (544 KB PDF)
Citation Wai 2417, 2.5.8
Tribunal Waitangi Tribunal
Member(s) Deputy Chief Judge Fox (Presiding), Miriama Evans, Ronald Crosby, Tania Simpson
Earlier/later decisions
Legislation cited Treaty of Waitangi Act 1975, Māori Community Development Act 1962
Cases cited
Overview and result The Waitangi Tribunal will inquire urgently into the process adopted by the Crown for the reform of the Māori Community Development Act 1962 (the Act), under which the New Zealand Māori Council and the Māori Wardens are governed.

The Waitangi Tribunal will inquire urgently into the process adopted by the Crown for the reform of the Māori Community Development Act 1962 (the Act), under which the New Zealand Māori Council and the Māori Wardens are governed.

The claim and the application for an urgent hearing were made by a number of members of the New Zealand Māori Council and District Māori Councils and the claim addressed several key aspects of the review of the Act. Although one limb of the claim will not be inquired into immediately, the Tribunal determined that the two other main limbs of the claim ought to be granted an urgent inquiry.

Background

This claim arises from the process adopted to review the Act.  The Act provides the legislative framework for:

  • the New Zealand Māori Council supported by three levels of Māori Associations (Māori Committees, Māori Executive Committees, and District Māori Councils);
  • Māori Wardens; and
  • Community Officers.

In 2010, the Māori Affairs Select Committee recommended that the Act should be reviewed in light of the significant changes in Māori communities that have taken place since the early 1960s, when the Act was passed. The Crown subsequently began a process to review and reform the Act, led by Te Puni Kōkiri, the Ministry of Māori Development. This included the publication of a discussion document in 2013 that sought feedback on proposed options for reform.

The New Zealand Māori Council opposes the review process adopted by Te Puni Kōkiri and on 27 September 2013 Council members filed a claim about the review process.  On 2 October  2013 the Tribunal received an application for an urgent hearing of this claim.  Deputy Chief Judge Fox was delegated the task of determining the application and subsequently three other Tribunal Members (Miriama Evans, Ronald Crosby and Tania Simpson) were appointed to assist Deputy Chief Judge Fox in this task.

A judicial conference was scheduled for 16 December 2013.  On 11 December 2013, the Crown sought an adjournment in light of Cabinet’s decision, announced by the Minister of Māori Affairs that day, that no changes would be made to the Act in respect of the New Zealand Māori Council and that further consultation would take place before any proposals in relation to the Māori Wardens was finalized.  However, Cabinet’s decision did not remove all the issues to which this claim relates.  The Crown acknowledged that aspects of the claim that relate to the Māori Wardens remained live and the Tribunal did not consider that there were grounds to adjourn consideration of the application for urgency:

We note that there has been no suggestion from the Crown that it will defer the process of reform of the Māori Community Development Act 1962 insofar as the District Councils and Māori Wardens are concerned. While the Crown has suggested that the Tribunal could adjourn and await the full definition of what that reform process will result in, we have not been persuaded to do so. That is because the history of the matter to date indicates that only limited assessment is being completed during policy formation steps to ascertain whether officials are promoting Crown actions or policy that are consistent with the principles of the Treaty, including adherence to Clause 7.60 of the Cabinet Manual, when making bids for the introduction of relevant legislation. (at [104])

Clause 7.60 of the Cabinet Manual provides that Ministers must draw attention to any aspects of a bill that have implications for, amongst other specified matters, the principles of the Treaty of Waitangi.

Issues

The claimants made three broad claims:

The First Claim

The NZMC’s first claim was based on concerns that specifically relate to the consultation and reform process being designed and directed by the Crown.  Claimant counsel submitted that the Crown’s decision not to allow the NZMC to design and lead the reform process was inconsistent with principles of rangatiratanga and self-determination and the key issues in regard to this claim are set out in the Tribunal’s direction (at [18]):

The irreversible prejudice to Māori and the claimants and the NZMC includes that the Crown’s process of reform – even a more limited partial reform:

  • Threatens the loss of official recognition for the functions of the NZMC, the District Councils and the Wardens;
  • It diminishes the respective roles of the NZMC and the District Councils and thus their rangatiratanga; It will modify their self-governing rights without consent and render their claim moot once draft legislation is introduced into the House of Representatives; and
  • It denies the NZMC the right to negotiate with the Crown and lead the process of consultation and reform in partnership with the Crown.

Second Claim

The second claim focused specifically on the Māori Wardens Project.  The Māori Wardens Project was initiated in 2005 and was a joint venture between Te Puni Kōkiri and the NZ Police to provide training and support for the Wardens.  As part of the Project the NZ Māori Wardens Association was established to govern and manage Māori Wardens and since the Project began, funding for the administration of the Māori Wardens has not been included in the NZMC’s funding.  The NZMC allege that this Project has diminished the authority of the NZMC to administer the Māori Wardens in terms of the Act.  Key issues in regard to this claim are set out in the Tribunal’s direction (at [31]):

The irreversible prejudice to the claimants has been, they allege:

  • To confuse the warranting of Wardens, resulting in frustration for Māori Councils and Committees, and in Māori operating as Wardens without warrants or with invalid warrants;
  • To compromise the Wardens’ kaupapa, that they are authorised by and accountable to their communities and are independent of the Police;
  • To compromise the capacity of the NZMC, the District Councils and the Wardens to exercise self-government and to maintain that into the future;
  • To render the NZMC and District Councils supplicants in relation to their autonomous functions;
  • It prevents Māori exercising self-government;
  • Māori including the claimants and the NZMC may have no further opportunity to be consulted regarding any proposals for reform concerning the Māori wardens; and
  • A potential loss of mana in being side-stepped by the Crown in the consultation process.

The Third Claim

The third claim relates primarily to the timing of the consultation and reform process.  In particular, the NZMC alleged that the Crown has not acted in good faith by undertaking this reform process and pursuing a programme of consultation at a time when the NZMC was engaged and focusing resources on the National Fresh Water and Geothermal Inquiry (Wai 2358).  The Tribunal’s direction also sets out the key issues in this claim: (at [36])

The claimants allege that the prejudice to them has been to:

  • Confuse the Māori community as to the capacity of the NZMC to lead the water claim;
  • Create uncertainty amongst co-claimants, advisors and persons contributing to costs;
  • Frustrate co-claimants who have planned for many years to protect their water rights;
  • Divert the limited resources of the NZMC from the focus on the Water claim to engage with the Māori Community Development Act 1962 reform process thus 
making it more difficult to prosecute the Water claim; and
  • Undermine the NZMC’s authority and mana.

Discussion

Claimant evidence

Karen Waterreus, the Secretary for the NZMC, referred to four key areas of concern in her evidence in support of the NZMC’s application (see [63-66]).

First, the consultation process has been developed without regard to the right of self-determination.  The NZMC sees its role as one mechanism for the expression of Māori self-determination and so the reform of the Act is also inextricably connected with Māori self-determination. By continuing with the reform process when the NZMC had expressly signaled that it did not agree with the Crown-led process, the Crown has not acted consistently with this right to self-determination.

Second, the consultation material failed to put the 2010 Select Committee report in context, and in particular does not address the significant reforms. In particular, the consultation material does not address the actions that the NZMC had taken to improve its governance and administration following the Select Committee report.  Nor did the consultation material identify the role that the Crown has played in administering the Māori Wardens, which has contributed to some of the issues with the Māori Wardens.

Third, Ms Waterreus noted that the consultation material failed to put the Act in context. Without full and accurate background information, consultees are not able to participate in the process for the reform of the Act in a way that is appropriately informed and effective.

Fourth, consultation hui organized by the Crown did not allow for meaningful input. Ms Wattereus argued that the NZMC ought to have had input into the schedule for consultation hui, especially given the NZMC’s statutory role and the potential implications of the reform process for the NZMC.

Crown opposition

The Crown opposed the application for urgency on the basis that it was premature because, subsequent to the Cabinet’s December 2013 decision to undertake further engagement, there is now no imminent or pending Crown action in relation to the review of the Act (see [67-85]). Though the Crown acknowledged that aspects of the claims that relate to the Māori Wardens remain live, the Crown submitted that there was no longer any urgency in relation to these matters.

Decision

The Tribunal agreed to grant an urgent hearing in respect of some aspects of the claim.  In relation to the First and Second claims the Tribunal stated:

We consider that there are grounds for urgency as this is an exceptional case because of the unique nature of this claim, the history of the legislation and its recognition of the right of Māori to self-government, the unique nature of the Council system and the inextricable link and development of the Māori Wardens under the agency of Māori communities and the District Councils. (at [103])

The Tribunal noted that whether the engagement process that has been undertaken by the Crown to date is adequate “can only be ascertained from a full hearing into the claim” (at [108]).

The Tribunal did not accept the Crown’s argument that limiting the NZMC involvement in this process was justified because the NZMC has a conflict of interest in this matter (at [110]).  Furthermore, the Tribunal questioned whether the Crown itself could be seen as “a neutral facilitator in this process when it is actively promoting the establishment of a national body” (at [111]).

However, the Tribunal rejected the application for urgency in respect of the Third Claim, noting that the NZMC itself is responsible for deciding what matters it will prioritise and how it allocates its resources:

In the end the choices made by NZMC in that regard are its own and cannot be attributed to bad faith on the part of the Crown without clear and compelling evidence. No such evidence has been provided. (at [117])

The Tribunal directed that a full hearing for this claim be scheduled for March 2014.

Subsequently the Tribunal’s Chairperson has appointed Deputy Chief Judge Fox as the Presiding Officer for the Wai 2417 inquiry and Miriama Evans, Tania Simpson, Ronald Crosby and Dr Grant Phillipson as the Tribunal members who will conduct this inquiry (Wai 2417, 2.5.009, 16 January 2014).