On the 22nd of July 2022 the second reading debate on the Canterbury Regional Council (Ngai Tahu Representation) Bill (the CRC Bill) took place in Parliament.
The purpose of the CRC Bill is to provide Ngai Tahu with the right to appoint two non-elected members to the CRC alongside fourteen elected members.
In many respects the constitutional issues raised are the same as those raised by the now “paused” Rotorua District Council (Representation Arrangements) Bill (RDC) which I wrote about on 23 June 2022 - see HERE.
That Bill was referred to the Auditor General who found that the Bill offended section 19 of the Bill of Rights Act 1990 in that it discriminated on the basis of race by giving Maori two votes whilst all other eligible New Zealanders only have one.
The CRC Bill, when enacted will do precisely the same thing. Maori (Ngai Tahu) will be given the right to appoint two members to the CRC and have the right to vote at an election for a candidate of their choice of any ethnicity including Maori.
It seems that the Attorney General has relied on legal advice provided to him dated 23 November 2021 long before his decision made on 21 April 2022 on the RDC Bill.
The key finding of the RDC report is expressed in clause 30 of the report dated 21 April 21 April 2022. It states, “This proposed arrangement detracts from the key constitutional principle of equal representation in a representative democracy. I consider that there must be strong reasons to depart from this fundamental principle and, accordingly, to justify the limit on the right to freedom from discrimination. Departures from the Local Electoral Act may also have broader constitutional impacts and need to be carefully considered. Arrangements like these, if replicated across other local bodies could result in significant impacts, which may be better considered in full by the central government and Parliament.”
CRC is a local authority just as RDC is. CRC and RDCs governing bodies are elected to office by the eligible residents within the local body boundaries.
Therefore if the principle of equal representation is offended by the RDC proposal it is similarly offended by the CRC arrangement.
The CRC advice argues that in this case there is no discrimination because Maori have a special status which is conferred upon them by two factors:
1. Maori are the Crown’s treaty partner, and
2. The Crown’s duties under the Treaty of Waitangi
And therefore they conclude that there is no other group in a comparable position and the Human Rights Act 1990 does not apply.
The advice ends with this statement, “In the context of the provisions within this Bill no other persons or group can be considered to be in comparable circumstances Ngai Tahu and no persons or group will be materially disadvantaged by the passing of the Bill. The result of this assessment is that the Bill of Rights Act is not engaged.”
In my opinion this interpretation of the scope and effect of the Bill of Rights Act is dangerously flawed.
Both of the factors relied upon in the advice are the subject of conjecture and uncertainty. Neither of them are contained in any statute which has been enacted by the sovereign Parliament of New Zealand.
The New Zealand Bill of Rights Act 1990 is an act of Parliament and it sets out in clear terms the prohibited grounds for discrimination by reference to section 21 of the Human Rights Act 1993 and is covered in the RDC report of 21 April 2022.
It is demonstrably incorrect to state that no comparator group has a special association with the region. Non Maori also have a special association with the region just as Maori do.
Both Maori and all other eligible New Zealanders have the inalienable right to put themselves forward as a candidate for election and to vote by secret ballot.
The passing of the CRC Bill into law will be another nail in the coffin of our once world leading democracy. It will confer a greater right on some New Zealand citizens based on race in direct contravention of the New Zealand Bill of Rights.
Graeme Reeves is a lawyer and former National MP.