Reynold Macpherson: Rotorua's Representation Review Biased Towards Co-Governance

Introduction

New Zealand’s central government ended local referenda on 1 March 2021[1]  that had retarded the introduction of Māori wards. Rotorua Lakes Council (Council) decided on 21 May 2021 to introduce a Māori ward to elect a member or members to Council. 

Council also decided to establish a Representation Review. It specifically authorised consultations with mana whenua and wider stakeholders with a view to reinforcing co-governance:

4.     That Council agree to carry out a wider review of Council’s governance framework, including the purpose, membership and powers of Council’s committees and community boards, and a discussion with Te Arawa and the broader community about the possibilities of strengthening co-governance. [2]

Council’s invitation to residents to participate in the Representation Review[3] made no mention of co-governance. This could mean that the review will exclude critical consideration of co-governance structures and the services of Te Tatau o Te Arawa (Te Tatau, a committee of 14 established and funded by Council to represent the interests of Te Arawa uri). 

In my view it is now vital that residents and ratepayers are fully informed on the initial options being considered, especially because the updated representation arrangements will stay in effect for six years (two election cycles) or until the next review. 

The timetable is brisk. Council will adopt a draft ‘initial proposal’ on 31 August. Public consultations and formal submissions will be accepted between 8 September and 8 October. Public hearings will be heard from 11 November. Council will adopt a revised proposal on 16 November. Objections/ appeals may be lodged between 19 November and 19 December. The Local Government Commission will make final determinations on 10 April 2022.

Eight options have been considered to date regarding representation on Council that are now critically reviewed.

Option 1

Option 1 is to restructure representation to reflect the distribution of electoral populations in General and Māori wards. The legislation introducing Māori wards prevents citizens from changing their current enrolment before the next district and regional elections to be held in October 2022. It is a continuing source of discontent.

The number of Māori ward members to be elected by citizens in one or more Māori wards is determined by formula.[4]  In the Rotorua District, the General Electoral Population (GEP) is 55,600 (72%) and the Māori Electoral Population (MEP) is 21,700 (28%), totalling 77,300. 

 

If the Council retains 10 elected councillors, as appears to be widely favoured, then the General ward could elect seven councillors and the Māori ward could elect three councillors. Table 1 clarifies Option 1.

 

Table 1: Option 1

 

Option 1 appears to be broadly compliant with s3 of the Local Government Act (LGA)[5] which requires Council to provide “democratic and effective local government that recognises the diversity” of Rotorua’s communities, even though it only recognizes two ethnic categories of diversity. 

Democratic local government must also adhere to the principles of public accountability, transparency, proportionate representation of all communities, and representation of all interests, including future interests. Further, the LGA requires Council to play “a broad role in promoting the social, economic, environmental, and cultural well-being of its communities, taking a sustainable development approach.” 

Any significant inconsistencies between these principles and Council’s actions could expose it to successful judicial review. 

One objection to Option 1 is that those on the Māori roll would have only three votes for electing Councillors while those on the General roll would have seven votes. This difference is perceived as unfair by those who believe that the Treaty of Waitangi (ToW) guarantees partnership with mana whenua and 50/ 50 co-governance. 

Rotorua Mayor Steve Chadwick regards 50/ 50 co-governance as her Nirvana. Many councillors and members of the Rural and Lakes community boards and Te Tatau actively promote 50/ 50 co-governance. 

One counter argument to this claim of unfairness is that each vote cast must have the same democratic power to elect councillors. In a democratic system of government, meaning government by the people, sovereignty (the right to rule) is vested equally in each voting citizen. The ballot box is used to aggregate the views of citizens and to authorise the elected government to govern on the grounds that it has the consent of the governed. 

To be fair, in democratic terms, the approximately three tenths of the electoral population on the Māori roll is entitled to elect three tenths of the councillors. To be equally fair, the approximately seven tenths on the General roll is entitled to elect seven tenths of the councillors. Any significant variation in this capacity to elect councillors would give the voters on one of the two rolls an undue advantage in voting power and the others a disadvantage.

When each vote cast has much the same capacity to elect councillors, it satisfies the principle of equal suffrage. If the votes of one group of citizens have significantly greater or lesser power per citizen than the votes of other groups of citizens, then they constitute an elite or lower electoral class. Democracy is a system where all citizens have equal rights to representation.

Equal suffrage is already being used by Council as a principle for evaluating the fairness of representation. The population per councillor in each ward must deviate less than 10 per cent from the average population per councillor to be regarded as acceptable.

Equal suffrage is required in law. It is a democratic and civil right defined by s12 of the New Zealand Bill of Rights.[6] This law determines that all citizens, irrespective of the roll they are on, have the same democratic and civil rights. To ensure that their votes have the same value, the number of members to be elected from a ward must be directly proportionate to the size of the electoral population in each ward. Direct proportionality is regarded as fair, in democratic terms.

A second counter argument to Option 1 is that the perceptions of unfairness to some residents do not rely on the values of democratic representation or civil rights. Instead, as noted above, they are based on a belief that the ToW guarantees mana whenua a partnership with Council, and therefore 50/ 50 co-governance, irrespective of the size of electoral populations. 

This belief already underpins some governance practices. The Te Arawa Partnership Model (TAPM) adopted by the Council in 2015 was based on this belief. Te Tatau was the only stakeholder group invited to advise Council and community boards on Māori wards prior to the 21 May decision. Council recently established a co-governance committee comprising the Mayor, Deputy Mayor and three Councillors (all Te Arawa affiliated), and five Te Arawa leaders to provide recommendations to Council on the Three Waters Reforms, with the Mayor and a mana whenua representative to co-chair the committee.^[7]

This belief does not appear to cohere with current law.[8] The ToW is not expressly incorporated in either the Local Government Act (LGA) or the Resource Management Act (RMA). Provisions related to the ToW in the LGA and RMA refer to consultation not partnership. Provisions related to the ToW refer to contributions to decision-making process not decision-making power. The TAPM could lead the COUNCIL to avoid its responsibility to consider how it might seek to engage with Māori in the region, by implementing and relying solely on the TAPM. While the Environment Court’s decision[9] may influence how the Council engages with Rotorua iwi, it does not give the Council the authority to operate beyond its mandate as defined in the LGA and RMA. 

In sum to this point, there are two competing belief systems being used by elected members of Council to propose, evaluate, and justify representation. In my view,

·      Option 1 broadly satisfies the principles of democracy and is compliant with current law, and. 

·      Options 2-8 reflect partial displacements of democratic principles and law by what are believed to be the principles of the ToW.

Option 2

Option 2 has been proposed to give those on the Māori roll an additional opportunity to vote for candidates standing in an ‘At Large’ ward, that is, a constituency with an electoral population of all 77,300 citizens. 

If the total number of Councillors remains at 10, and three councillors continue to be elected from the Māori ward, then an ‘At Large’ ward electing one councillor will have to be taken from the seven councillors to be elected by the General ward. The result is evident in Table 2.

Table 2: Option 2

Members of the GEP will retain their democratic and human rights to proportionate voting power per vote with the creation of this ‘At Large’ ward. 

Members of the MEP may resent having four votes for Māori and At Large councillors, compared to seven votes given to those on the General roll. 

Although it is impractical to expect the sole ‘At Large’ Councillor to serve 77,300 constituents, compared to councillors elected by General and Māori wards, once elected, all councillors are required by oath to serve the interests of all constituents. 

The percentage deviation of 900 in the At Large ward vastly exceeds the maximum of 10 per cent considered acceptable. Some on the Māori roll will resent having less votes than those on the General roll. Option 2 therefore fails to meet the equal suffrage principle and ToW principles.

Option 3 

Option 3 was created to give those on the Māori roll the opportunity to vote for two candidates in the ‘At Large’ ward by taking two councillors from the General and Māori wards. 

The result is evident in Table 3.

Table 3: Option 3

 

Members of the GEP may resent the further loss of their democratic and human rights to equal suffrage, although they will each have eight votes to elect General and At Large councillors. 

Members of the MEP may resent having four votes for Māori and At Large councillors compared to the eight votes for those on the General roll. It may therefore be seen by them as a backward step compared to Option 2. 

The percentage deviation of 19.87 per cent in the General ward from the District’s average population per councillor significantly exceeds the maximum of 10 per cent considered acceptable. Further, the percentage deviations of 40.36 per cent in the Māori ward and 500 per cent in the At Large ward confirm that Option 3 fails to meet the equal suffrage principle. Those who want 50/ 50 co-governance will regard Option 3 as failing the principles of the ToW.  

Option 4

Option 4 was created by taking yet another councillor from the General ward, holding the Māori ward to two members, and thereby gaining another At Large councillor. 

The consequences are evident in Table 4.

Table 4: Option 4

 

Members of the GEP, comprising 72 per cent of the total electoral population, may be mollified by having eight votes to elect General and At Large councillors in Option 4, although Option 4 would significantly fail the equal suffrage test. 

Once again, members of the MEP may resent having five votes each for Māori and At Large councillors compared to the eight votes for those on the General roll, especially if they believe that they are entitled to 50/ 50 co-governance. 

Overall, however, the percentage deviations of 43.86 per cent in the General ward, 40.36 per cent in the Māori ward and 233.34 per cent in the At Large ward confirm that Option 4 is even less able to satisfy the equal suffrage and ToW principles than Options 2 and 3.

Option 5

This option further reduces the number of councillors in the General ward to 4, while holding the number of councillors in the Māori ward to 2, in order to increase the number of At Large ward councillors to 4. The net effects are clear in Table 5.

Table 5: Option 5

Again, members of the GEP, with eight votes to elect General and At Large councillors, would hugely exceed the equal suffrage limits of plus or minus 10 per cent deviation from the average population per councillor of 7,730.

The percentage deviations of 43.86 per cent in the General ward, 40.36 per cent in the Māori ward and 233.34 per cent in the At Large ward confirm that Option 5 is even less able to satisfy the equal suffrage principle than Options 2, 3 and 4.

Members of the MEP, each with six votes for Māori and At Large councillors (compared to eight votes for General and At Large electoral populations), would probably favour this option over all others, especially if they believe that they are entitled to 50/ 50 co-governance. On the other hand, they may be puzzled as to why 28 per cent of the total electoral population will only elect two councillors.

Option 6

Option 6 sets aside General wards in favour of Urban and Non-Urban wards, with Māori wards unaffected. The outcomes are displayed in Table 6.

Table 6: Option 6

 

Members of the GEP, each with seven votes to elect Urban and Non-Urban councillors, may be concerned that neither ward is within the 10 percent deviation permitted from the average population per councillor. 

The MEP may resent having three votes for Māori councillors, compared to the five votes for those on the General roll in Urban areas and two for those in Non-Urban areas, especially if they believe that they are entitled to 50/ 50 co-governance. 

Overall, however, the percentage deviations of 11.28 per cent for Urban and 18.58 per cent for Non-Urban areas in the General ward fail to satisfy the equal suffrage principle. 

Option 7

Option 7 was created by adding a councillor to the Urban ward to bring the total number of councillors to the General ward up to 8 and on Council up to 11, with no change to three councillors being elected from the Maori ward. The effects are evident in Table 7.

Table 7: Option 7

 

The GEP may be concerned that Non-Urban representation exceeds the 10 percent deviation allowed from the average population per councillor.

The MEP, although comprising 28 per cent of the total electoral population, may resent having only three votes for Māori councillors compared to the eight votes for those on the General roll, especially if they believe that they are entitled to 50/ 50 co-governance. 

Overall, however, the percentage deviation of 13.03 per cent in the General ward both fails to comply with the equal suffrage principle and will offer no perceived advantage to those voting for three councillors in the Māori ward using ToW principles. 

Option 8

Option 8 was created by adding yet another councillor to the Urban area to bring the total number of General ward councillors on Council up to 9 and on Council up to 12. The outcomes are evident in Table 8.

Table 8: Option 8

 

The GEP may be more satisfied that having seven councillors represent Urban areas and two representing Non-Urban areas are all within the 10 per cent deviation considered acceptable.

Conversely, holding the wards to having three councillors on a 12-person Council would both fail to meet the 10 percent deviation limit and allocate 25 per cent of overall representation on Council to the MEP that comprises 28 per cent of the total electoral population. This would be unacceptable to those who believe that mana whenua are entitled to 50/ 50 co-governance.

In sum, the limitations of Options 6-8 suggest that the Urban/ Non-Urban/ Māori categories of representation are inappropriate for election to Council.

Interim Conclusions

This analysis has limitations. It assumes that members of an electoral populations are homogenous in their political views on representation. That is unlikely to be true. 

There are other possible iterations in the possible reorganisation of representation that could be discussed and incorporated prior to 31 August when Council will adopt a draft ‘initial proposal.’ For example, in my view, the relative merits of Single Transferable Voting and First Past the Post voting should be considered.

Interim conclusions are warranted. Taken together, Options 6, 7 and 8 represent an attempt to expand the number of General councillors to legitimate representation using Urban and Non-Urban wards, only to worsen the comparative position of Māori councillors to the point of their representation not being within the 10 per cent deviation limit. The problem can be traced primarily to the comparatively small electoral populations that live in Rural and especially Lakes areas. 

The net implication is that the Urban and Non-Urban categories of representation tested in Options 6-8 are less appropriate for electing councillors to Council than Options 2-5 because they fail equal suffrage and ToW principles. On the other hand, Council could yet consider electing one councillor from a Farming ward (given the importance of the Forestry and Wood Processing and Agribusiness sectors of Rotorua’s economy). If not, Council might best default to the Rural and Lakes Community Boards continuing to represent the unique sets of interests in those communities as policy advisory boards, despite their size. 

The option that best delivers on ToW principles is Option 5. It would give members of the MEP six votes each (for Māori and At Large councillors as compared to eight votes each for General and At Large electoral populations). However, Option 5 fails the equal suffrage test required in law and would violate the democratic and human rights of others. The complexities of Option 5 will also be difficult to explain to electoral populations, especially so to members of the MEP puzzled as to why they will only have two Māori councillors.

The option that best delivers on democratic principles, such as equal suffrage (and which is also required in law), and on the decision to introduce Māori wards, is Option 1. It is relatively easy to explain why the MEP (28% of the total electoral population) should elect three out of ten councillors. 

Although this paper should be regarded as a preliminary briefing it highlights the extent to which Rotorua’s Representation Review is overly biased towards co-governance at potential cost to democratic values required in law. 

Dr Macpherson is Chairman of the Rotorua District Residents and Ratepayers and developed this paper to keep the 1099 members informed about early developments in the Representation Review. He is also an elected member of Rotorua Lakes Council.

 

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[1] Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021 (2021/3), available at https://www.legislation.govt.nz/act/public/2021/0003/latest/whole.html

[2]https://www.rotorualakescouncil.nz/repository/libraries/id:2e3idno3317q9sihrv36/hierarchy/Meetings/Council%20Meeting/2021-05-21/PUBLIC%20Agenda%20Council%20meeting%2021%20May%202021%20%28Māori %20Wards%29.pdf

[3] https://letstalk.rotorualakescouncil.nz/your-choice-2022-representation-review

[4] s2, Schedule 1A, Local Electoral Amendment Act 2002 (2002 No 85). 

[5] https://www.legislation.govt.nz/act/public/2002/0084/latest/whole.html#DLM170879

[6]https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225511.html?search=sw_096be8ed80b62589_suffrage_25_se&p=1&sr=0

[7] p. 5 https://www.rotorualakescouncil.nz/repository/libraries/id:2e3idno3317q9sihrv36/hierarchy/Meetings/Council%20Meeting/2021-07-05/PUBLIC%20Agenda%20Council%20Meeting%205%20July%202021.pdf

[8] Butler, Andrew. (14 April 2015) Te Arawa Partnership Model, memorandum to Rotorua Pro-Democracy Society.

[9] Ngati Pikiao Environmental Society Incorporated et al. v. Bay of Plenty Regional Council and Rotorua District Council (2013) NZEnvC 116 at [89] to [94].