Councils’ obligations to Māori
Earlier this year the Kaipara District Council commissioned Franks Ogilvie to prepare a report outlining local Council’s obligations to Māori.
The resulting 126-page report , which cost an unbudgeted $52,000, was narrowly approved by the Council in a 5-4 vote. 68 pages were recycled advice previously given by Franks Ogilvie to Hobson’s Pledge.
I have not been able to analyse the document in detail but some glaring inaccuracies stand out.
The report claims that Councils owe no treaty obligations to Māori. Given that Councils are creatures of statute and that Councils could cause liability to the Crown by acting in breach of Treaty rights this seems to me to be an overstatement. And when Council is exercising delegated powers the Crown’s obligations and limitations must apply.
Besides limiting what Council does to what it is legally required to do does not fit with my view of Local Government’s potential for good. A minimalist approach fails to fit with the high expectations that residents have of their Councils.
The report also states that the Treaty of Waitangi is not considered to be a “fundamental constitutional document” and asserts that sovereignty was ceded by the Treaty. This claim has always been contentious.
Opponents on the Kaipara District Council were scathing. From the Northern Advocate:
“Te Moananui o Kaipara Māori ward councillor Pera Paniora said the report was “bulls***” and an echo chamber of the political positions of some councillors.
…
Several councillors opposing the adoption tried to pause the vote to allow time for an information briefing, in line with normal council process.
Mark Vincent questioned the motives of those pushing for adoption at the meeting without that step.
“We need to give it proper consideration,” he said.
…
[Eryn] Wilson-Collins said the document undermined the Treaty of Waitangi as a constitutional document, treating it more like a political courtesy.
She said it denied that councils had Treaty obligations, claimed Māori had no right to consultation or outcomes, and framed participation as a burden.
“This is disrespectful to local mana whenua.
“It said mana whenua mandates had no statutory basis.”
This was a complete dismissal of hapū and iwi rights, with existing obligations spun as optional.”
Questions have been raised about the quality of the report.
The associated agenda item stated that the report has been peer reviewed by Simpson Grierson. In particular:
“The committee also agreed that the CE conduct a legal peer review of the draft document. The CE then coordinated that using council’s solicitors, Simpson Grierson.”
The report was circulated to all Local Government entities in the country with an assurance that it has been peer reviewed. This has resulted in an extraordinary response from Simpson Grierson denying any suggestion that it endorsed the report. From Susan Botting at the Northern Advocate:
A Simpson Grierson spokesperson said it did not endorse the content of the July 22 final opinion adopted by the council and then distributed around New Zealand.
The spokesperson said the firm’s limited role in relation to the opinion had been to peer review an earlier draft version in May.
“There remain several matters on which we disagree with Franks Ogilvie, including statements about Treaty obligations, domestic law interpretations and the application of Local Government Act provisions,” they said.
The spokesperson said the firm’s role was in a high-level review only, as had been requested by KDC chief executive Jason Marris, and was provided to the council on June 18.
Simpson Grierson said its peer review included specific qualifying statements about its scope and limitations.
“We expressly did not review political commentary, criticism of judges and courts, or advocacy statements contained in the final opinion.”
Nor had the firm reviewed discussions of Government policy or proposed legislative reforms that had not yet reached the preliminary, or bill, stage of the Parliamentary legislative process.
It offered to release its letter if Kaipara District Council gave permission to do so.
Putting to one side the legal views contained in the Franks Ogilvie opinion , it is regrettable that Kaipara District Council should attempt to minimise and sideline Māori aspirations and wishes as well as Te Ao Māori.
Franks Ogilvie is at the centre of a number of right wing organisations. The Taxpayers Union has links to the organisation. Hobson’s Pledge is clearly a client. The Free Speech Union, Hauraki Gulf User’s Group and the Water User’s Group, all organisations opposed to Te Ao Māori have registered offices at Franks Ogilvie’s premises.
Its opinions are being used for political advocacy. I do not believe that the status being given is warranted.
And presenting Council’s obligations to Māori in such a minimalist way is deeply disrepectful to Māori. No Council that I have ever been part of has decided to do the minimum permissible for any of its communities let alone for Tangata Whenua.
