Friday, April 19, 2019

Bob Edlin: The prickly issue of Treaty rights and governance

Point of Order was handsomely rewarded when we emailed a Victoria University of Wellington law lecturer with questions about the propriety and legality of cracking eggs on the heads of unpopular politicians.  Within two hours Māmari Stephens had addressed the issues we raised with a well-considered response.
The response was somewhat briefer when we emailed the university with questions raised by an article on its website headed Academics commend Hastings District Council for inclusive, effective decision-making.
The article was prompted by the council’s decision to appoint Māori representatives with speaking and voting rights to its four standing committees, sparing them the need to campaign for election as the councillors who made the decision had been obliged to do.
The council press statement which announced the decision noted:
  • The prospect of greater tangata whenua representation in council decision making, in a district where 25 per cent of the population is Māori, has been under discussion for at least two years …
  • Although the Hastings District Council currently has five councillors who have identified as being of Maori descent, it was noted that they were elected on their wider merits, rather than on a solely Maori mandate.
The council website says the elected council is made up of the Mayor and 14 Councillors.
This means 33% of the council which decided in favour of appointed representatives “to be more inclusive and hear the voice of our iwi partners” identify as being of Maori descent.
The VuW news item which welcomed the decision began:
Hastings District Council has recognised the benefits of engaging more closely with tangata whenua and should be congratulated for taking steps to strengthen its relationships with tangata whenua, says Victoria University of Wellington Te Kawa a Māui Head of School Associate Professor Maria Bargh.
The article characterised opponents of this arrangement as being “anti-diversity” rather than champions of an unadulterated democracy.
The vote went through despite opposition from anti-diversity group Hobson’s Pledge, which put out an urgent call to its supporters to write letters of opposition to HDC councillors against the proposed changes, says Te Kawa a Māui lecturer Annie Te One.
 “The basis of their opposition is that unelected tangata whenua should not be allowed to vote on council as—according to Hobson’s Pledge—they do not possess the credentials to actively contribute to local decision-making,” she says.
Associate Professor Bargh says, “The position held by Hobson’s Pledge ignores the fact that councils have the right to appoint unelected voting members to council standing committees should they have relevent expertise. Tangata whenua who are appointed onto Māori Joint Committees possess relevant expertise relating to Iwi and Māori interests in the areas. Māori expertise are specialist expertise and should be treated as such.”
This raises questions about how best to ensure diversity through our democratic system.
The VuW article went on:
Local governments are required to ensure that Māori have access to contribute to local decision-making as part of their reponsibilities as Treaty of Waitangi partners.
This raises questions about what the treaty says and what people nowadays claim it says to justify their endorsements of “partnership” arrangements.
Finally, the VuW played a bemusing numbers game:
Associate Professor Bargh says Māori are substantially under-represented in council decision-making structures. “Allowing tangata whenua the right to speak and vote on decisions is one way for councils to work towards equitable processes.”
We emailed VuW’s communications team with questions which we suggested Associate Professor Bargh might address:
  1. In what ways are Treaty responsibilities not met by an electoral system which entitles Maori to stand and campaign for office and to vote for the candidates of their choice, the same as any other eligible citizen?
  2. Should appointments be made to local authorities to ensure representation for other ethnic groups?
  3. Which clauses in the Treaty of Waitangi oblige local authorities to ensure representation – by appointment, if need be – for tangata whenua?
  4. Who should make the appointments and by what means should the ratepayers and citizens of a district be enabled to hold appointed decision-makers to account?
And finally (drawing attention to the representation and population numbers we referenced earlier in this post) we asked if Dr Bargh nevertheless contends Maori are under-represented on the Hastings District Council.  If so, how does she explain her position?
We were wondering if she subscribed to the view that the co-governance mix should be 50% Maori and 50% the rest of the population.
A group calling themselves Tāmaki Treaty Workers included this idea  in a submission in 2010 to the Parliamentary committee which considered Auckland governance legislation.
Opposing the bill under consideration at that time, they described themselves as a network for groups and individuals, mainly Pakeha/Tauiwi in Tamaki Makaurau “who affirm Te Tiriti o Waitangi as the basis for the future of Aotearoa, New Zealand”.
Their submission argued:
A genuine Treaty partnership would reflect equal 50/50 representation of tangata whenua and tauiwi at governance level, however at the very least there should be three guaranteed seats for Māori representation and more importantly manawhenua representation as recommended by the Royal Commission
He said he believes local government should reflect the Treaty of Waitangi, there should be more Māori representation and tāngata whenua should have an equal voice.
“We haven’t gone any further ahead at a local government level with our commitment and our relationship with iwi. Ideally for me it would be 50-50 at the table.”
Māori Party co-leader, Te Ururoa Flavell, agreed:
“It will always be the Treaty argument – a 50-50 representation. The mere fact that he’s asked for just one representative as a right is a fallback position to achieving that ultimate goal.
“I think that Māori as tangata whenua bring that unique perspective – and you can talk about it as a Treaty right – to the decision-making table. His view about how that should happen is way ahead of his time and hopefully we’ll achieve that at some point in the future.”
Dr Bargh has left us guessing about what she thinks of this.
She addressed our questions in four sentences:
Te Tiriti o Waitangi reaffirmed Māori tino rangatiratanga and allowed for Crown kawanatanga. This partnership approach has been noted as one of the Principles of the Treaty of Waitangi by the Crown, the courts and the Waitangi Tribunal. 
Te Tiriti o Waitangi creates obligations, including for the Crown to actively protect Māori rights and interests and to uphold the Treaty partnership. Ensuring that Māori are a key part of decision-making in local government is one of the ways that the Crown can uphold their obligations.
Dr Bargh has left us in the dark, too, about how she would make the system more inclusive and ensure representation for other ethnic groups.

Bob Edlin is a veteran journalist and editor for the Point of Order blog HERE.


Anonymous said...

Increasingly, we seem to blur the distinctions between statistical representation - i.e. forming a panel that reflects the characteristics of the population it is drawn from - and agency representation, as required in the governance of firms and other political agencies. The House of Representatives (i.e. Parliament) appoints from its membership a Government whose duty is to make the best decisions for the governance of NZ inc. now and in the future - that is, regardless of the identity of those who elected them, or what might be in their specific interests. This is the same as for the Board of a firm, which are bound by their fiduciary duties (expressed in the Companies Act) to make decisions in the interest of the entire company, not just those shareholders who voted for them or share specific external characteristics with them. What we need to assess this performance is information that tells us how well they governed for the wellbeing of the entire entity, not just the interests of one specific stakeholder group. If Maori members are to have decision-making rights on these bodies, they must demonstrate and be held accountable for how well their decisions benefit the whole, not just a subset of it. It is beholden on those who make these appointments to also develop processes to demonstrate how these members perform their fiduciary duties to the entity as a whole. Just as it should be beholden on all other 'representative agents'. Otherwise, we make a mockery of the process of representation - if the 'representatives' are required to solely address the concerns and interests of the subset of the population whose characteristics they share, then it is not a representation process in the classic sense, but a process where delegates are held to account for doing what they promised they would do to for the people who chose them. It is a difficult task balancing the needs and preferences of of disparate communities - but that is what councils and Parliament are charged with doing. Lets work more on the messages and measurement of performance of duties to the whole rather than just one part of it. If there is a flaw in the current decision-making processes, then fixing rather than just changing the decision-makers to get a different answer using an already-flawed process is what is required.

KP said...

All the South African immigrants recognise apartheid when they see it. This is why they were so resentful of the sanctions in the 70s and 80s, they knew full well that the countries imposing sanctions had racist legislation in place. It was only a short time that NZ had equality for all races.

Graham Cliff said...

Of course Dr Bargh has failed to enlighten us: she's trying to defend the indefensible, mainly by using vague Maori terms in conjunction with meaningless generalisation.
There is no 'Treaty partnership': it's a logical absurdity and a legal nullity. If however, we accept, for the sake of argument, that there is some sort of partnership between Maori and The Crown, it's then an unjustifiable leap to suggest that it must be a partnership of equals.There are many examples in everyday life, whereby there are asymmetrical partnerships, the constitution of which depends on all manner of considerations, not the least being the numerical balance of the respective parties.
Thus, not only is the idea of special representation for Maori misconceived, but also based on flawed reasoning. Yet all too many people have allowed themselves to be taken in by this egregious confidence trick.
What price egalitarian democracy, anyone?