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 …

And

• 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

In 2014, former New Plymouth mayor Andrew Judd called on the Government to change the law so that half of all councillors are Māori.

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.

Pity.

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