Gary Judd KC: Dare to be a Daniel

Dare to be a Daniel

Dare to stand alone

Dare to have a purpose firm

Dare to make it known

So runs the refrain in a nineteenth century hymn inspired by the biblical story in the Book of Daniel, of a Jewish captive in Babylon (a region compromising parts of present-day Iraq and Syria, with the city of Babylon about 85 km south of today’s Baghdad). According to the account Daniel’s rivals tricked Babylonian King Darius into signing a decree that forbade praying to anyone but King Darius. Despite knowing the penalty was death, Daniel went home and prayed three times a day with his windows open toward Jerusalem, as was his custom. He was thrown into a den of lions, but God “shut the lions’ mouths,” and he was found unharmed the next morning. Furious, Darius had the conspirators “cast … into the den of lions, them, their children, and their wives; and the lions had the mastery of them, and brake all their bones in pieces or ever they came at the bottom of the den.”

The account of Daniel in the lions’ den concludes: “So this Daniel prospered in the reign of Darius, and in the reign of Cyrus the Persian.”

The Book of Daniel was reportedly written about 200 years after the events it purports to record and may be accorded about the same degree of credibility as the story of the creation of heaven and earth by the forcing apart of Rangi the Sky-father and Papa the Earth-Mother and the other stories in A W Reed’s Maori Myths and Legends, or the account in Homer’s Iliad of Achilles being the offspring of sea nymph Thetis and King Pelaus, and many other oratorical and literary creations of ancient peoples.

Notwithstanding its apocryphal origins, the refrain spawned by the Book of Daniel encapsulates virtues, often found to be lacking, of independence and integrity. Independence involves acceptance of responsibility for forming one’s own judgements and integrity in being prepared to stick to them in the face of opposition.

In the Far North there may not be a Daniel, but there is a Davina, Davina Smolders who was elected a member of the governing body of the Far North District Council (FNDC) at the local body elections last October. She stood as an ACT Party candidate, stating she was “focused on building a council that’s fair, balanced, and transparent – one that protects property rights, ends race-based policies, and restores fairness to local decision-making.”

The governing body of the FNDC had an extraordinary meeting on Wednesday, April 13 at 9 am to deal with just one agenda item. FNDC has announced the decision on its website:

Far North District Council will proceed with the appointment of 10 external hapū and iwi members to its Te Kuaka Committee for Māori Strategic Relationships, following a robust discussion during today’s Extraordinary Council Meeting.

The decision confirmed that two representatives from Te Kahu o Taonui, Northland’s iwi chairs forum would be appointed to the committee, with another eight to be appointed from iwi and hapū that have an existing memorandums [sic] of understanding with the council.

Mane Tahere and Wallace Rivers were confirmed to represent Te Kahu o Taonui at the meeting. The remaining eight representatives will be named if and when iwi and hapū wish to appoint representatives.

Nine councilors voted in favour of the motion to appoint external, non-elected representatives, with one against (Ms Smolders) and one abstention.

The announcement also reports:

The extraordinary meeting was highly anticipated following a controversial podcast which was highly critical of the appointments.

More than 100 people gathered outside the council’s Kaikohe headquarters today ahead of the meeting and the public gallery was filled to capacity. Most who attended were in support of the committee and the appointments, although some in the gallery opposed the proposal.

Te Kuaka Committee for Māori Strategic Relationships was established to provide Te Tiriti based leadership and partnership between the council and iwi and hapū across Te Tai Tokerau. Its effectiveness relies on the direct participation of iwi and hapū leadership.

Ms Smolders stood alone; she was the one member opposing the proposal. As I shall show, she was the only member loyal to the law and to democracy. Like Daniel, she dared to be alone, dared to have a purpose true and dared to make it known.

I have referred to the Council’s “governing body”. That’s because there is a widespread misconception that the “council” is the mayor and elected members. That’s wrong. The mayor and members are not the council; they are the governing body of the council. The council is the corporate entity which the mayor and members are elected to govern.

The statute establishing district councils like FNDC is the Local Government Act 2002 (LGA).

FNDC is a territorial authority which is a variety of local authority and is “a body corporate with perpetual succession” (LGA, s12(1)). The Chief Executive is the body corporate’s principal administrative officer (s 42(4)).

The body corporate is to be distinguished from those who govern it. Governance is dealt with in Part 4 of the LGA. What is called the “governing body” of a council consists of the elected members and the mayor (s 41(2)).

The body corporate goes on in perpetuity unless it is disestablished by or under statute. It is like a company, and — like a company’s directors — the mayor and council govern or are supposed to govern the council. Like a company’s directors, those governors may change, in a council’s case at the triennial local body elections. But the body corporate itself continues.

Schedule 7, clause 30(1) of the LGA says a local authority may appoint a committee as a “subordinate decision making body”, and clause 31(3) that the members of a committee may, but need not be, elected members of the local authority; the local authority may appoint to a committee a person who is not a member of the local authority “if, in the opinion of the local authority, that person has the skills, attributes, or knowledge that will assist the work of the committee ….”

Thus, a committee may make decisions, and it may have non-elected members on it. However, a person appointed to a committee must have “the skills, attributes, or knowledge that will assist the work of the committee.” This means (a) the appointment must be by the local authority, (b) the person appointed must have the requisite skills, attributes or knowledge, and (c) the local authority must have formed the “opinion” that the person has those attributes.

It is therefore obvious that in the first place the governing body cannot lawfully let someone else choose committee members. But that’s what the April 15 meeting did when it appointed “another eight to be … from iwi and hapū that have an existing memorandums of understanding [sic] with the council.”

In the second place, the governing body cannot form an opinion that the person has the requisite attributes unless it knows who the person is and has sufficient information about the individual to be able to form that opinion. The extraordinary meeting appointed two named persons who were “representatives” of the Iwi chairs forum but received no other information about them. They were appointed not because they had the requisite attributes but because they were representatives.

Plainly, therefore, the appointment of these non-elected members was illegitimate. Ms Smolders was the only member who cared. The mayor didn’t care. Of course not. He had previously purported to appoint the members in that way by himself without involvement of elected members. Ms Smolders kicked up a stink, especially in a podcast discussion with Duncan Garner. There was apparently a letter to the Council from the Minister for Local Government. The extraordinary meeting was called to try to legitimize the mayor’s activities. A mob was mobilised to put pressure on the elected members.

The elected members apparently didn’t care whether what they were doing was right or wrong —apart from Ms Smolders, that is.

The mayor claims the committee is just an advisory committee and that he and the elected members make the decisions. But that’s not true. What it is allowed to do depends on the power the governing body gave it which is spelt out in its terms of reference.

Within its terms of reference, the Committee is autonomous. The Council as the governing body would need to be proactive by changing the terms of reference to exercise control over the Committee.

Its terms of reference empower the committee to tell the body corporate what to do. They include:

Kaupapa / Purpose

To provide strategic leadership and guidance that strengthens Te Ao Māori perspectives within Council decision‑making, ensuring genuine Te Tiriti‑based partnership and leadership between FNDC and iwi/hapū, and to provide recommendations to full Council. This includes strengthening Council’s relationship with Iwi and Hapū by promoting effective partnership models, improving engagement practices, championing shared decision‑making, and adding value to relationships with Māori.

….

Ngā Herenga Paetae / Responsibilities

The Committees responsibilities are described below:

1. Build and sustain genuine, high-trust relationships based on He Whakaputanga and Te Tiriti o Waitangi.

2. Continue with the development and implementation of Te Kuaka - Te Pae ki Tawhiti 2040 Strategic Intent.

3. Support strategic partnerships that empower communities, Hapū, and Iwi to shape their own development.

4. Oversee Te Pae o Uta Te Ao Māori Framework

5. Facilitate collaboration across sectors to invest in quality infrastructure and initiatives.

6. Develop and approve frameworks for partnership, engagement, monitoring and reporting.

7. Identify and prioritise strategic relationships with Iwi, Hapū, Government agencies, and key stakeholders.

8. Monitor and evaluate the effectiveness of partnerships.

9. Provide direction to the Council on relationship strategies and opportunities.

10. Ensure Te Ao Māori perspectives inform Council strategic and operational work.

11. Recommend to Council, aspects of importance to Māori for incorporation into the development of the Strategic documents (e.g. Te Ao Māori Framework, Annual Plan, Long Term Plan, District Plan)

12. Recommend to Council aspects that the Far North District Council could pursue to develop and or enhance Māori capacity to contribute to Council’s decision-making processes.

Only responsibilities 11 and 12 involve recommendations to “Council.” In all other respects, in discharging its responsibilities to achieve its purpose, the Committee decides without reference to the governing body. It is not even clear whether the references to “Council” in 11 and 12 are to the governing body or to the body corporate, i.e., recommendations through the chief executive or subordinate administrators.

For example, the “strategic leadership and guidance” referred to in the Purpose comes from the Committee, not from the governing body. Also, the strategic leadership and guidance is not to the mayor and members but to the body corporate.

The accurate description is that the governing body makes the decisions only if the Committee makes a recommendation to the governing body in the areas mentioned in 11 and 12. Unless that happens, there’s nothing for the governing body to consider.

When the terms of reference use the term Council, sometimes they may refer to the body corporate and sometimes to the governing body. When they refer to “full Council” they are presumably referring to the governing body. When they refer to FNDC they are referring to the body corporate. When they refer to “Council” that means the body corporate.

The “strategic leadership and guidance” is leadership and guidance of the body corporate. Likewise, “Council decision‑making” is decision making within the structures of the body corporate, not decision making by the governing body.

It follows that the claims that the governing body still makes the decisions are disingenuous. The governing body has divested itself of responsibility in the areas covered by the terms of reference in favour of a committee where unelected members are in the overwhelming majority and are appointed not by the governing body but by the iwi chairs forum and hapu.

The first purpose of local government, stated in s 10 of the LGA is to enable democratic local decision-making and action by, and on behalf of, communities, and the role of a local authority such as FNDC is to give effect to its purpose (s 11). A local authority must act in accordance with principles set out in s 14. The first is to conduct its business in an open, transparent, and democratically accountable manner. Another principle is that it should provide opportunities for Māori to contribute to its decision-making processes. That doesn’t mean, hand over decision-making to iwi and hapu. That runs completely counter to the requirements for democratic decision-making and democratic accountability.

Part 4 of the LGA contains governance principles. The first is that a local authority should ensure that the role of democratic governance of the community, and the expected conduct of elected members, is clear and understood by elected members and the community. That’s the responsibility of the chief executive as the local authority’s administrative leader. No sign of that at the FNDC.

Clearly, therefore, the mayor of FNDC and the members of its governing body, apart from Ms Smolders, have engaged in processes which corrupt the purposes and principles of local government. They are engineering a transfer of power to iwi and hapu, no doubt in pursuance of the claim to have sovereignty over the north, a claim which is as apocryphal as that of Daniel in the lions’ den. The mayor and all but one of the elected members are promoting or supporting this unlawful transfer of power or are cravenly standing by and allowing it to happen.

Part 10 of the LGA gives the Local Government Minister power to act where there is a “problem” in relation to a local authority. Within the technical language of s 256, there’s no doubt that FNDC is displaying a range of problems. It is subverting the fundamental tenets of local government. This is not mere inadvertence or disfunction. It is deliberate defiance of legislative requirements sacrificing democracy and the rule of law in the advancement of an ideological cause. The Minister should demonstrate his commitment to democracy and the rule of law by taking action without further hesitation.

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.