Bob Edlin: Ombudsman invokes the Treaty and declares his aim to be fair – particularly to one group of citizens

All animals are equal, but some animals are more equal than others. This was the declaration of the pigs who control the government in George Orwell’s novel, Animal Farm – a tart comment on the hypocrisy of governments that proclaim the absolute equality of their citizens but gives power and privileges to a small elite.

This country’s chief ombudsman – of all people – has tweaked this and declared that, for the purposes of his office, all citizens are equal but some are more equal than others.

Peter Boshier has established a panel of Maori advisers, which (he says)

“ .. conveys our role as a watchtower ensuring fairness for all, particularly Māori.”

The panel is called Pūhara Mana Tangata and is made up “of prominent experts and rangatahi leaders”.

Boshier says it has been

“ … formed by representatives of tangata whenua for tangata whenua.”

We think he is acknowledging this is a race-based panel to meet the needs of just one of the population’s several ethnic groups.

But creating a watchtower to ensure fairness for all, particularly Māori, will require a rewriting of information we found on the Ombudsman’s website which explains the office’s current purpose:

The Ombudsman and their staff help New Zealanders in their dealings with government agencies. We handle complaints against government agencies, undertake investigations and inspections, and encourage good administration.

We focus on fairness for all. We are independent and impartial.

Not any more, apparently.

Boshier further focuses on race distinctions when he says:

“One of my highest priorities as Chief Ombudsman is to be more responsive to Māori.”

None of the country’s many other racial groups are embraced by this expression of his mission.

Boshier says he expects the Panel’s experience in Māori governance and iwi engagement will help steer his office’s engagement and communications

“ … to focus on matters that have the most positive and enduring impact on Māori communities.”

“We know we have work to do to raise our profile so more Māori are aware of our work”

Why not aim to make ALL citizens aware of his office’s work?

Boshier is supported as Chief Ombudsman by a Deputy Ombudsman, two Assistant Ombudsmen, a General Counsel and more than 100 staff located in Auckland, Wellington and Christchurch.

So what is the reason for reinforcing this support by appointing a panel of Maori advisers?

His press statement says:

“The Chief Ombudsman acknowledges the partnership between Māori and the Crown established by the Treaty of Waitangi, and recognises it to be a critical factor in carrying out his work as the independent watchdog for Parliament overseeing and reporting on the actions of New Zealand crown agencies.”

Oh dear. He has invoked the troubling “partnership” which is not actually mentioned in the Treaty of Waitangi.

When Kelvin Davis’s ministerial domain was expanded by the establishment of the Office for Māori Crown Relations: Te Arawhiti, we emailed questions to him to establish if he supports the establishment of more co-governance arrangements around the country and – if so – in which areas of public administration and governance?

We also asked:

1. Will the promotion of co-governance arrangements be among the objectives of the newly established Maori-Crown relationship agency?
2. What does the Minister believe is meant by the Treaty “partnership” (it is not actually mentioned in the Treaty of Waitangi) and when was a Treaty “partnership” first officially invoked for governmental policy-making purposes?

We did not receive answers.

More recently, Conservation Minister Eugenie Sage told Point of Order:

“The principles of the Treaty of Waitangi are not explicitly stated in the articles of the Treaty itself.

“They have evolved primarily though jurisprudence…”

They also have significant governance and constitutional implications.

Sage further said:

Section 4 of the Conservation Act 1987 requires the Minister of Conservation and DOC to give effect to the principles of the Treaty of Waitangi in the interpretation and administration of the Act (including all enactments listed in Schedule 1 of the Act). This is one of the strongest weightings of Treaty of Waitangi principles in legislation.

The principles of the Treaty of Waitangi are not explicitly stated in the articles of the Treaty itself. They have evolved primarily though jurisprudence, most notably the Lands case (New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641).

The Treaty principles most relevant to DOC’s work are as follows:

– Partnership – mutual good faith and reasonableness

– Informed decision-making

– Active protection

– Redress and reconciliation

Mark Burton, Minister of Justice in the Labour-led government in 2007, reflected on the history and development of the Crown-Maori “relationship”.

He referenced Sir Robin Cooke, writing in 1994, who observed that 12 decisions from the Court of Appeal between 1987 and 1993 on matters relating to the Treaty of Waitangi

“… enabled a new line of jurisprudence to emerge in New Zealand – Treaty jurisprudence.”

Burton also acknowledged “treaty principles” being hard to pin down:

“In the view of the Courts and the Waitangi Tribunal, Treaty principles are not set in stone. They are constantly evolving as the Treaty is applied to particular issues and new situations. Neither the Courts nor the Waitangi Tribunal have produced a definitive list of Treaty principles.

“As President Cooke has said: ‘ The Treaty obligations are ongoing. They will evolve from generation to generation as conditions change’.”

Further information on the Treaty principles and DOC can be found here.

What about the Ombudsman’s job?

He has authority to investigate approximately 4,000 entities in the public sector in New Zealand.

According to the Ombudsman, the public sector includes:

• government departments and ministries
• ministers and the Police (in relation to decisions on requests for official information)
• local authorities
• crown entities
• state-owned enterprises
• district health boards
• tertiary education institutions
• school boards of trustees.

All government agencies must cooperate with the Ombudsman’s investigations.

But the co-governance partners which are spouting at local authority level around the country are not “government” agencies – are they?

Boshier could clarify this during his meetings with the panel and ascertain whether Maori co-governance partners are willing to be subjected to the Official Information Act and Ombudsman’s investigations – or whether they would rather be held accountable only to fellow Maori.

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