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| Article: A TREATY AGENDUM FOR LOCAL GOVERNMENT |
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2 November 1999 at 14:16:15 Tama Potaka* There is a vast literature on the Treaty of Waitangi. However, a large number of constitutional issues such as who owes Treaty obligations and the nature and extent of these obligations are not clear.1 Instead, such issues are often obscured by the media sensationalising Treaty-settlement processes, Máori fisheries, and Pákeha political assumptions about what Máori want.2 Amidst talk of fish, cash settlements and development, little Treaty jurisprudential thinking addresses the complex legal, cultural and economic issues surrounding local government and Máori. It is the purpose of this paper to expand Treaty jurisprudential thinking in the area of local government,3 and to advocate a direction for local government Treaty obligations. I INTRODUCTION Two centuries ago Máori were the undisputed managers and administrators of natural resources in Aotearoa. Máori self-government occurred at iwi, hapú, whánau and individual levels.4 Tíkanga Máori evolved from the resource base itself, and dictated governance and management. Strategic planning was determined by the foreseeable needs of future generations and the immediate needs of resource use.5 Representation of the collective social structures demanded responsibility and was subject to regular assessment by the collectives. Today, Pákehá local government and central government dictate the operation of Máori self-government. Clarity in the relationship between Pákehá local government and Máori is particularly important considering that Máori development and cultural survival occurs primarily at the local levels.6 Central government's role in guiding this relationship is paramount given the powers it has in negotiating Treaty settlements, and dictating local government behaviour through legislation. This paper considers local government Treaty obligations and responsibilities.7 Part II outlines the recent reform of local government. Part III assesses whether it is appropriate to conceptualise local government as the Crown, and whether local government has Treaty obligations independent of the Crown label. Part IV comments on recent local government initiatives with Máori in areas of planning and representation. Part V identifies the advantages and disadvantages of local government having Treaty obligations. Part VI concludes by suggesting possible improvements to the present constitutional framework. One major theme underlies this essay. Treaty obligations follow the exercise of powers of Káwanatanga. Treaty obligations attach to the body exercising powers of Káwanatanga, and are not dependent on labels such as 'the Crown'.8 The recent Crown devolution of responsibilities to local government has meant that local government exercises powers of Káwanatanga. This demands Treaty responsiveness from local government. In simple terms, when local government exercises powers of Káwanatanga, it has Treaty obligations. II REFORM OF LOCAL GOVERNMENT Local government in New Zealand is based on the English model of local government. Control of local government in England was historically exercised by the Crown.12 By the nineteenth century central government policies expressed in legislation dictated its operation.13 These policies helped to create the first local government structures in Aotearoa.14 These local government structures in Aotearoa were transformed in the late nineteenth century, and the later structures remained in substantially the same form until the 1984-1990 reform period.15 Prior to the reform local government in Aotearoa was broadly divided into territorial authorities and special purpose authorities. By 1988, there were over 800 such authorities in Aotearoa. Finance was obtained through rates levied on real property, and from central government assistance. Between 1984-1990 the Fourth Labour government initiated local government reform founded on increased autonomy and improved accountability of decision-makers to the public.16 This reform followed changes made to local government in Britain. Devolution of resources and responsibilities to territorial authorities and regional councils was driven primarily by efficiency motives.17 Reform emphasised environmental management and corporatisation of trading activities. The legislative outcomes from this reform were massive. The number of local government authorities was reduced to fewer than 90. The Local Government Act 1974 ('the LGA') was substantially amended between 1988-1989 (especially giving increased financial independence for local government),18 and a new environmental management statutory framework based on the Resource Management Act 1991 ('the RMA') emerged.19 Functions formerly performed exclusively by the Crown, and the responsibilities for those functions, were thus transferred to local government. Máori consensus had demanded a Treaty-driven system of local government throughout the process of reform.20 Before the reform, local government had minimal legislative or practical Treaty responsiveness. However, aside from environmental management, reform did not improve Treaty outcomes at a local level. The LGA and its 1988-1989 amendments were not used to bring the Treaty into local government despite attempts by some officials to do so.21 Parliament had conferred substantial powers of Káwanatanga on the new local government structure with no obligation to comply with the Treaty.22 Máori as tangata whenua, were effectively excluded from this structure and treated as another interest group. This is of major cultural and economic significance. Local government presently constitutes a major sector of the economy with an annual operating income of $3 billion, infrastructure assets worth about $22 billion and a ratepayer equity of $27.5 billion. It contributes around 3.5% of the Gross Domestic Product of New Zealand.23 A Introduction It is clear that the Crown is a Treaty partner and has Treaty obligations, but what the Crown constitutes for Treaty purposes remains elusive.24 The Crown was identified in the Treaty of Waitangi as 'Her Majesty the Queen of England'.25 However, New Zealand's constitutional development transferred authority for Káwanatanga from the English Monarch to the settler government.26 The evolutionary nature of the Crown has meant societal groups have defined it differently.27 This is especially problematic for groups that have tried to isolate the Crown for Treaty purposes.28 Máori have been particularly disadvantaged through exclusion, as a Treaty partner, from the process of redefinition of Káwanatanga structures. This Part addresses the appropriateness of conceptualising local government as the Crown or a Crown agent, and whether it really matters for Treaty discourse. B IS LOCAL GOVERNMENT THE CROWN? 1 Redefinition Conceptualising local government as the Crown, thereby acquiring Crown immunities and Treaty obligations, involves redefinition of Treaty relationships. Redefinition of Treaty relationships is not abhorrent to Treaty jurisprudence.29 Máori self-government structures have changed since the Treaty and so far have not been subject to serious mainstream constitutional discourse.30 This is in contradistinction to the attention given to the changes in the definition of the Crown and the authorities exercising Káwanatanga. While the Crown is the symbolic Treaty partner, the central government (despite initial opposition from Máori ) has powers of Káwanatanga and the Crown's Treaty obligations.31 Local government theoretically could take on a similar role. 2 Local Government Act 1974 The authority of local government is not sourced in any constitutional document, but is referable to ordinary statutes.32 The nature of local government is therefore dictated by the relationship it has with the Crown, as expressed in legislation. The LGA defines the current relationship between the Crown and local government. The statute distinguishes local government from the Crown.33 Section 37K of the LGA outlines the purposes of local government: The purposes of local government in New Zealand are to provide, at the appropriate levels of local government, (a) Recognition of the existence of different communities in New Zealand; (b) Recognition of the identities and values of those communities; (c) Definition and enforcement of appropriate rights within those communities; (d) Scope for communities to make choices between different kinds of local public facilities and services; (e) For the operation of trading undertakings of local authorities on a competitively neutral basis; (f) For the delivery of appropriate facilities and services on behalf of central government; (g) Recognition of communities of interest; (h) For the efficient and effective exercise of the functions, duties, and powers of the components of local government; and (i) For the effective participation of local persons in local government. There are several minor references to Maori in the LGA.34 However, the LGA does not impose statutory Treaty obligations.35 The recent devolution of responsibilities and powers of Káwanatanga is not mirrored by devolution of Treaty obligations. The absence of Treaty references in the LGA contrasts with other Labour reforms between 1984-1990.36 Environmental management reform in the RMA requires local government to have particular regard to or to take into account some tíkanga Máori when operating pursuant to that legislation.37 Corporatisation reform in the State-Owned Enterprises Act 1986 includes: "Nothing in this Act permits the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi".38 Education reform also resulted in greater Treaty responsiveness. The Education Act 1989 requires schools, when proposing a charter, to consider the views of Máori.39 University Councils are required to acknowledge the Treaty principles in exercising their statutory duties.40 These reforms indicate that the Labour government attempted to create greater Treaty responsiveness within the state. However, this responsiveness is not reflected in the local government legislation. 3 Statute No statute identifies local government as the Crown or part of the Crown. The Constitution Act 1986 offers no definition of the Crown. The Crown Proceedings Act 1950 ('the CPA') defines the Crown as 'Her Majesty in right of Her Government in New Zealand'. The Public Finance Act 1989 ('the PFA') definition of the Crown is more expansive than the CPA definition, but the PFA definition does not include local government either.41 The PFA gives a separate definition for 'local authority', suggesting that local government is not the Crown. Private land means any land, or interest in land held by a person other than- (a) The Crown; or (b) A Crown entity within the meaning of the Public Finance Act 1989. It is arguable on grounds of statutory interpretation that for the purposes of the TOWA local government could be conceptualised as the Crown. The lack of reference to the PFA in section 2 (a) of the TOWA suggests that the definition of the Crown for the purposes of the TOWA is not limited to the PFA definition of the Crown (unlike Crown entity), hence could include local government. However, two extrinsic aids counter this argument. Parliamentary debates which led to the inclusion of this definition specifically refer to local government land as constituting private land, hence being excluded from recommendation by the Waitangi Tribunal.43 This contrasts with Crown lands which are open to recommendation. Second, and more importantly, the Waitangi Tribunal has stated that the Crown for the purposes of the TOWA has the same meaning as the Crown for the purposes of the Crown Proceedings Act 1950.44 The meaning of the Crown is not extended to include bodies which have Crown-delegated responsibilities. It is helpful to consider statutes that focus on the relations between the exercise of executive power and citizens. This may point to local government being perceived as part of the Crown, or at least exercising powers of Káwanatanga. Aotearoa has a statutory framework designed to encourage principles of open government. The Ombudsmen Act 1975, the Official Information Act 1982, the Local Government Official Information and Meetings Act 1987 and the Privacy Act 1993 indicate the emphasis now placed on the accountability of executive power. These statutes do not treat local government as part of the Crown. However, the Ombudsmen Act 1975, the Local Government Official Information and Meetings Act 1987 and the Privacy Act 1993 do apply to local government,45 and these statutes treat local government similarily to central government and the Crown. This suggests that local government exercises powers of Káwanatanga. 4 Case law a Treatment of Local Government as the Crown Judicial treatment of the idea of local government being conceptualised as the Crown for Treaty purposes is sparse. In Hanton v Auckland City Council46 ('Hanton') the Planning Tribunal (now known as the Environment Court) addressed the issue of whether the Auckland City Council operating as a consent authority pursuant to the RMA, possessed the Treaty obligations of the Crown. The Tribunal stated:47 Section 8 of the RMA states: "In achieving the purpose of this Act, all persons exercising functions and powers under...[the Act]...shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)." Hanton states that local government is not the Crown for Treaty purposes, although the RMA requires local government to take into account the Treaty principles. On this basis it is difficult to contend that local government is the Crown for Treaty purposes in the absence of statutory provisions explicitly stating that. The judicial view expressed in Hanton has been criticised from a constitutional law perspective:48 Brookfield considers that treatment of the Treaty in Hanton is wrong. Brookfield's approach concentrates on the exercise of powers of Káwanatanga as having obligations. Local government is considered to be exercising powers of Káwanatanga that have been qualified by statutory Treaty obligations. The label, "local government", that is now attached to the body which exercises those powers is unimportant. This suggests that anything once in the purview of the Crown as a result of what was ceded in 1840, is qualified by Treaty obligations if there is a statutory basis for that qualification. b Treatment of the Treaty Although the judiciary has been unwilling to conceptualise local government as the Crown for Treaty purposes, judicial treatment of the Treaty suggests local government may need to act pursuant to the Treaty or to its principles. Judicial treatment of the legal status of the Treaty is unclear.49 The Privy Council case of Hoani Te Heuheu Tukino v Aotea District Máori Land Board50 ('Te Heuheu') enunciated the orthodox legal position regarding use of the Treaty as a means to seek redress. The Privy Council stated that the Treaty is part of New Zealand law only to the extent that it is expressly recognised by statute.51 Two Parliamentary select committees have investigated local government.57 These committees were convened before the reform period and can only be taken as giving a historic view of local government. Both select committees treated local government as part of a unitary governing structure 'for which Parliament alone is responsible'.58 Whilst not asserting that local government is the Crown (for Treaty purposes or otherwise), these comments suggest that the select committees considered local government, at the very least, to be exercising powers of Káwanatanga. Neither report mentions Máori or the Treaty. Whether local government is a Crown agent (as opposed to the Crown) is unclear.59 The High Court has adopted a 'control' test in determining Crown agency.60 If the entity is substantively controlled by central government then it constitutes a Crown agent.61 Central government has little control over the functions management of local government.62 This suggests that local governments are not Crown agents and therefore have no Treaty responsibilities, unless specified in statute. Some commentators suggest that a 'functional' test is more appropriate.63 If the body is exercising what is traditionally perceived as part of the general executive authority of government, then it is a Crown agent.64 This reinforces the theme of this paper that the nature of the body exercising powers of Káwanatanga is irrelevant. It is the fact that the body is exercising Káwanatanga that is important. If Káwanatanga is involved, then Treaty obligations are imposed.65 Local government authorities in Aotearoa perform tasks recently devolved from central government control.66 In performing those tasks they could readily be considered Crown agents under the functional test. Hence environmental management activities (pursuant to the RMA) require fulfilment of Treaty obligations, as do activities such as the provision of electricity. 7 Conclusion The authorities suggest that it is inappropriate to conceptualise local government as the Crown for Treaty purposes. The statutory scheme does not support a definition of local government as the Crown. The available case law and Parliamentary select committee reports suggest that local government is not the Crown, but does exercise powers of Káwanatanga. However, reference to these authorities does not mean that local government has no Treaty obligations. C Where Does Local Government Fit Under the Treaty? Most mainstream formulations of Treaty relationships invoke notions of partnership between Máori and 'the Crown'.67 This notion has informed the paper's discussion of the appropriateness of conceptualising local government as the Crown or as a Crown agent. It is submitted that the Treaty is essentially a redistribution of power. Máori redistributed exercise of powers of Káwanatanga to the Crown whilst preserving rangatiratanga.68 It was the exercise of powers of Káwanatanga that carried Treaty responsibilities, not the Crown label. It is submitted that the Treaty is not about labels, but is primarily about roles and obligations. Concentration on labels has restricted Treaty jurisprudential thinking. The functions of Káwanatanga were, and are, important. If any Pákehá body which is exercising Káwanatanga affects Máori, then Treaty obligations operate. It should not matter whether the body is central government, local government or a private body. Extension of Treaty relationships beyond the Crown-Máori relationship creates greater accountability at local levels for actions impinging on Treaty rights. Local government does not need to be artificially conceptualised as the Crown in order to possess Treaty responsibilities. Local government is exercising powers that have been assumed by the Crown, rightly or wrongly, on a Treaty basis. These include defining Máori environmental management structures and controlling transport systems (such as the roads and rivers). If local government did not exercise these powers, then central government would exercise them, or at least control their performance. It is contended that local government exercises powers of Káwanatanga that regulate and affect Máori. It has the ability to tax its citizenry.69 It has law making powers.70 It can compulsorily acquire property pursuant to the Public Works Act 1981.71 Private bodies are unable to exercise these powers. Furthermore, section 37K(f) of the LGA states that one local government purpose is the delivery of appropriate facilities and services on behalf of central government. This supports the contention that local government has powers of Káwanatanga. It is arguable that local government exercises powers of Káwanatanga but only the Crown has Treaty obligations. This argument assumes that devolution of power does not carry with it devolution of obligations. Hence, the Crown retains all Treaty obligations unless there is specific devolution of those obligations.72 The logical conclusion of this is that if the Crown devolves all powers of Káwanatanga without simultaneous devolution of Treaty obligations, it still retains those obligations, even though it may not be exercising powers of Káwanatanga anymore and has basically no existence. This is a strange conclusion that is not acceptable. In the event that the Crown disappears altogether, for example if Aotearoa became a republic, then Treaty obligations must fall somewhere. This paper contends that those obligations fall upon the entities which are exercising powers of Káwanatanga, whether or not there are statutory guidelines for such responsibility. 2 Waitangi Tribunal The Waitangi Tribunal has addressed issues surrounding the Crown devolution of responsibilities to other bodies.73 It has consistently maintained that the Crown cannot avoid Treaty obligations by conferring an inconsistent jurisdiction on others.74 This perspective considers that the Crown retains Treaty obligations if executive responsibilities are transferred to local government. Such an arrangement means that the Crown is a necessary backstop for Máori if local government authorities do not abide by Treaty principles.75 Presently the TOWA prevents the Waitangi Tribunal from recommending the return of local government land.79 Some Máori claim that this provision enables the Crown to distance itself further from its ability to perform its Treaty obligations by removing vast tracts of physical resources from potential recommendation. The Waitangi Tribunal could recommend compensation for resources now controlled by local government.80 A Introduction Local government has been instrumental in the dispossession of Máori resources and the subordination of Máori self-government. This cultural arrogance has provoked inherent Máori suspicion of local government, has contributed to diminished regional growth, and has created limited opportunities for harmonious relations between Máori and local government. This Part considers recent local government responsiveness to Treaty issues in relation to planning and representation. B Planning Few local government authorities have even skeletal references to Máori as tangata whenua in such planning.81 This may flow from the lack of clarity in the constitutional relationship between Máori and local government. Where there is a large percentage of Máori in the region, the relations between Máori and local government are developing as a matter of need.82 However, such arrangements are not noticeable in the larger metropolitan areas where Máori population ratios are much smaller, and corporation activities far greater. Wellington City Council for example has two Memoranda of Understanding with local iwi, but has no reference to guaranteed Máori participation in the Council's massive corporate activities.83 Historically Máori have not obtained guaranteed Máori representation in local government.84 The effectiveness of the Máori vote has been weakened by the low Máori voter turnout in local elections.85 These factors and the lack of Máori candidates, have produced relative invisibility of Máori on local government authorities. Máori are inevitably forced into lobbying individual Pákehá councillors for their support.86 This has complicated relations between local government and Máori by forcing Máori into lobbying as an interest group without distinct rights as tangata whenua, and therefore increased the costs of Máori participation in local government decision-making. Some local governments have adopted consultative strategies in a bid to improve Treaty responsiveness, forgetting that Máori demand representation as well as consultation.87 This approach often concentrates on local government in its environmental management capacities rather than in its administrative and corporate capacities. This excludes Máori from effective Máori representation in all local government affairs. The Local Government Amendment (No 8) Bill was mooted near the end of the period of the Labour Government reform of local government. It required local government authorities to establish Máori Advisory Committees as sub-committees of the authority. The Bill was not passed. Some local government authorities have established bodies similar to the Máori Advisory Committees suggested by the Bill.88 However, these committees have often been consultative rather than decision-making bodies. The Waitangi Tribunal warned that token representation effectively provides a Máori rubber-stamping mechanism and is not a complete solution to Máori representation.89 A Introduction This Part outlines the basic advantages and disadvantages of local government having Treaty obligations. This encourages an informed discussion and conclusion on the recommendations which follow this Part. B Advantages Expanding Treaty relations to include non-Crown bodies such as local government counters the reduction in the activitiesof the Crown through privatisation and devolution. Ensuring local government has Treaty obligations acknowledges the realities of change in the exercise of powers of Káwanatanga, and the redefinition of the Crown. This nullifies the effect of the Crown disappearing and rendering its Treaty obligations unfulfilled. Criticism of the conceptualisation as derogating from the Treaty Crown-Máori relationship can (in theory at least) be countered with the suggestion that the Crown retains primary responsibility for actively protecting Máori interests. This is comparable to the New Zealand Law Commission recommendations on the liability of the Crown for breaches of the New Zealand Bill of Rights Act 1990 ('the NZBORA').92 The New Zealand Law Commission stated that the Crown is primarily liable for breaches of the NZBORA, although making public bodies such as local government liable will have incentive effects on such bodies to comply with the NZBORA. The suggested expansion of the Crown is motivated by the principle that greater Treaty responsibility needs to be taken by authorities at local levels apart from central government as the Crown. Local government having Treaty obligations beyond environmental management increases the potential for greater equity for Máori. The RMA presently operates in a vacuum with regards to Treaty responsiveness. It is contended that local government has no incentive outside the RMA to treat Máori differently from other interest groups. Treaty obligations will encourage local government to ensure Máori participation, as tangata whenua, in local government activities. Local government will become more accountable to Máori outside of the regular sanction of electoral retribution. It is efficient for the Crown and Máori if local government has Treaty obligations. Máori would be able to take claims to the Waitangi Tribunal against local government breaches of Treaty principles. This would mean that the Crown would not be used as a backstop for Treaty claims. Máori development would not focussed initially on the ability to communicate to local government through Crown officials based in Wellington. Instead, Treaty discourse will occur at the local level, where Máori development occurs. The disadvantage of this situation is that the major costs for active protection of Máori interests would be transferred to local government. C Disadvantages If local government has Treaty obligations, the financial cost of local government decision-making would increase.93 Depending on the strength of the obligations, local government may be required to guarantee Máori participation in all decision-making processes or consultation in all processes.94 The potential for increased costs is emphasised with the contention that there is no guarantee of certainty with local government having Treaty obligations. Treaty provisions in the RMA have not increased the certainty over Treaty responsiveness in environmental management issues. Instead, they have contributed to greater litigation in the Environment Court. Treating Máori differently from other segments of the population will attract the argument that the decision-making processes are undemocratic and contribute to separatism/apartheid. Máori are able to participate in the present system as voters and employees of local government authorities. Máori can stand for election.95 To differentiate on the basis of race is discriminatory and tantamount to racism. Hence, it is inappropriate to give Máori different treatment on a Treaty basis. Conceptualising local government as the Crown, or as a Crown agent having Treaty obligations concerns both Máori and local government. Some criticise the conceptualisation as diminishing the significance of Crown-Máori relations. Some Máori consider that there is no distinction between local government and central government, and are unwilling to confuse the situation further.96 Others reject the suggestion on the basis that central government does not even have legal Treaty obligations (in a non-Crown capacity) therefore local government cannot either. The Crown has refused to take responsibility for the actions of local authorities.97 A prominent Cabinet Minister recently made the comment that local government is neither central government nor a private body, suggesting that the Crown does not consider itself responsible for development of local government - Máori relations.98 D Conclusion The potential for local government to have Treaty obligations (outside the RMA) is a trade off between policy arguments. At the heart of this policy debate is greater Treaty responsiveness at local levels versus increased costs in local government decision-making. It is contended that with appropriate statutory guidance on Treaty responsiveness, problems of cost encountered with Treaty obligations can be minimised. Hence, it is considered that local government having Treaty obligations is appropriate. VI RECOMMENDATIONS - WHAT SHOULD HAPPEN NOW? A Introduction The responsibility to clarify local government Treaty obligations rests primarily with central government and Máori.99 Local government participation in this process is important. However, without legislative change, local government goodwill presently relied on by Máori (except where there are statutory provisions) will not amount to greater fulfilment of Treaty obligations and rights. It will instead relegate Máori to the status of an interest group. This paper advocates change in the attitudes and actions of central government, local government and Máori . B Central Government It is recommended that central government should make legislative changes to ensure a Treaty-driven system of local government.100 This suggestion envisages greater Crown monitoring of local government in relation to Treaty issues and increased responsiveness of local government to Máori.101 Statutory guidelines for local government on how to meet obligations would ensure Máori are not forced to depend on Pákehá goodwill for Treaty rights to be upheld. Guidelines for local government would also encourage greater efficiency, as Máori would be less likely to approach the Crown over local government omissions to ensure Treaty obligations are met. The existence of guidelines may lessen the room for local government and Máori to develop relations.102 However, it is submitted that this is a necessary trade-off for greater certainty in the development of these relations. Treaty settlement negotiations may require local government participation when the Crown and Máori finalise settlement details. During this process central government needs to address the management of the ongoing relationship between state apparatus (including local government) and Máori. This mirrors the Canadian experience where provincial government is included in the negotiations process.103 It also suggests less emphasis on finality between the Crown and Máori, and encourages support by local government of Máori affairs. Greater empowerment of Máori at local government levels needs consideration. This empowerment must occur simultaneously with constitutional change recognising and clarifying the Treaty relationships identified earlier in this paper. Legislation has previously provided for Máori self-government. For example section 71 of the Constitution Act 1852 acknowledged Máori self-government in Máori areas.104 It provided for the, "[s]etting apart of districts in which the laws, customs and usages of the Aboriginal or Máori inhabitants of New Zealand should for the present be maintained for the government of themselves, in all their relations to and dealings with each other." However, its force was never tested; it was never used. There have been numerous statutes accommodating limited Máori self-government.105 The major recent attempt by the Crown to give Máori limited self-government came with the Ránanga Iwi Act 1990. However, it was repealed soon after enactment. One possibility for central government consideration in the present statutory framework is a redrafting of section 33 of the RMA to make it easier for local government to transfer powers to iwi to control (and not only to manage) areas of significance to iwi.106 Local government authorities need to address Treaty relations more seriously.107 Initially this requires local government authorities to identify where they stand in relation to Treaty issues. Second, it requires local government authorities to approach Treaty discussion with an open mind.108 Immediate measures include local government investing resources in educating itself on Treaty issues, and establishing clear channels of communication with Máori. Local Government New Zealand has encouraged this approach by stating that Máori are not just another interest group.109 Meaningful involvement by Máori in all planning is necessary for local government to be committed to the Treaty. Researching of Máori initiatives is an important way for local government to respond to Máori. Instead of adopting a negative approach to notions of tino rangatiratanga, local government may consider how local government can affirmatively encourage Máori aspirations for Máori self-government. This may require greater use of the devolution provisions in the RMA and the Fisheries Act 1996.111 D Máori Máori need to consider the ability of local government to assist Máori self-government. This involves rallying around iwi management plans and contributing to Máori service provision to Máori and the general community.113 It requires greater participation in local government elections and open communication with (albeit Pákehá dominated) existing local government authorities. Máori must necessarily consider the development of the Treaty relations to apply to all local government activities. If this does not happen, Máori and the Crown will be locked in a time-warp that does not recognise the practical reality that active protection of Máori interests better takes place at local levels. VII CONCLUSION It is submitted that conceptualising local government as the Crown is inappropriate and only a short term issue of definition which obscures the notion that Treaty obligations fall upon bodies exercising powers of Káwanatanga. More important to Treaty jurisprudence is the development of relations between Máori and local government, and greater control and power over resources for Máori. The ad hoc and piecemeal development of local government Treaty responsibilities to date, coupled with the extent of local government powers, demand action from the Crown and Máori. It is submitted that action means a Treaty-driven legislative agendum focussed on requiring local government authorities to comply with the Treaty in all their activities. This agendum is part of a wider constitutional agenda required to address state-Máori relations in the next millenia. Any devolution of powers of Káwanatanga to local government does not absolve the Crown of its Treaty responsibilities to Máori. However, it gives the Crown a monitoring responsibility in the development of local government-Máori relations. Central government and local government need to consider sharing power with Máori, instead of hoping that Máori entitlements and demands will be satisfied with policies that effectively mainstream Máori into Pákehá society. Anything less than an increase in power for Máori would signal yet another failure in respecting the Treaty and the rights enunciated by the Draft Declaration. 1 The Treaty is used to represent Te Tiriti o Waitangi 1840 (Máori text) and the Treaty of Waitangi 1840 (English text). The First Schedule of the Treaty of Waitangi Act 1975 contains the texts of the Treaty. 2 See "Máori call for republic debate" Sunday Star Times, Auckland, 2 August 1998, A2. Prime Minister Shipley contends that Máori are more interested in settling grievances than republicanism and wider constitutional issues. See also "Let fisheries assets flow, Henare urges Máoridom" The Dominion, Wellington, 5 August 1998, 1. 3 Local government is used to represent all types of sub-national bodies including territorial authorities and regional authorities and special provider boards. No distinction is made between Local Authority Trading Enterprises, Community Boards, Community Trusts, regional authorities and territorial authorities. 4 See A Ballara Iwi: The Dynamics of Máori Tribal Organisation from c1769 to c1945 (Victoria University Press, Wellington, 1998) for a Pákehá analysis of Máori self-governance structures ["Iwi"]. See Waitangi Tribunal Muriwhenua Fishing Report - Wai 22 (Department of Justice, Wellington, 1988) 187 ["Muriwhenua Fishing Report"]. According to the Waitangi Tribunal, self-government (tino rangatiratanga) was conceptually similar to the notion of local government. It is submitted that this comparison is based on an incorrect assertion, popularised in the Court of Appeal decision of New Zealand Máori Council v Attorney-General [1987] 1 NZLR 641 [Lands case] that Máori intentionally ceded sovereignty under the Treaty. Contrast the Manukau Report - Wai 8 (2ed, Government Printer, Wellington, 1989) 67 ["Manukau Report"]. Prior to the Lands case the Waitangi Tribunal was more liberal in describing self-government (tino rangatiratanga), comparing it to sovereignty. Pakeha local government is continually subject to control by a more authoritative body (such as the Crown/central government). Máori self-government at an iwi level was not controlled by a more authoritative temporal body. This suggests that the Manukau Report analysis more appropriately illustrated Máori self-governance structures. Máori self-government could be in the nature of sovereignty, hence of greater consequence than local government. 5 See P Nuttall and J Ritchie Máori Participation in the Resource Management Act (University of Waikato Occasional Paper No 37, Hamilton, 1995) 1. 6 See "B Mahuta" in H Melbourne Máori Sovereignty: The Máori Perspective (Hodder Moa Beckett, Wellington, 1995) 143-152. 7 It is considered that there are three basic Treaty-constitutional relations that need clarifying. These are relations between the Crown and Máori, relations between Máori and Máori (for example between iwi and hapú, and iwi and iwi), and relations between non-Crown bodies and Máori . This paper focuses on Crown-Máori relations, and non-Crown bodies-Máori relations. 8 Ko te tuatahi (Article 1) of the Treaty (Máori text) states: "Ko nga Rangatira o te wakaminenga me nga Rangatira katoa hoki i uru ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu te Kawanatanga katoa o o ratou wenua". This translates to mean that the Máori signatories ceded Káwanatanga to the Crown. There are different perspectives on the proper meaning of Káwanatanga. See IH Kawharu Waitangi: Maori and Pakeha Perspectives on the Treaty of Waitangi (Oxford University Press, Auckland, 1989). The English text of the Treaty uses 'sovereignty' to translate Káwanatanga. It is contended that this English term is an inadequate representation of what Káwanatanga entails. It is suggested that Káwanatanga was initially intended by Máori signatories to represent governance over non-Máori (in relations with non-Máori ), and to facilitate relations between non-Máori and Máori. However, it has been assumed to mean governance over Máori (in relations with Máori and non-Máori) and non-Máori (in relations with Máori and non-Máori). For the purposes of this essay Káwanatanga means any governance that affects Máori , that is not exercised by Máori . 9 See generally P McHugh "Aboriginal Identity and Relations - Models of State Practice and Law in North America and Australasia" (1997). McHugh suggests that there should be a shift in state-indigenous affairs from claims-centred ideology to placing greater emphasis on the relationships between the parties. 10 See M Durie "Mana Máori Motuhake: The State of the Máori Nation" in R Miller (ed) New Zealand Politics in Transition (Oxford University Press, Auckland, 1997) 372-385, 383. Durie comments that even at a national level advisory positions are only interim measures to achieve Máori self-determination (self-government/tino rangatiratanga). 11 Self-government and sharing power in local government accord more with the Treaty guarantees and rights of indigenous peoples as asserted by The Draft Declaration on the Rights of Indigenous Peoples ('the Draft Declaration'). The rights in the Draft Declaration include: 13 W Holdsworth A History of the English Law Vol 2 (3ed, Methuen, London, 1966) 405. See HWR Wade and CF Forsyth Administrative Law (7ed, Clarendon Press, New York, 1994) 110 ["Administrative Law"]. 14 The Municipal Corporations Ordinance 1842 (5 Vict No 6) established provisions for boroughs in Aotearoa. It was based on the Municipal Corporations Act 1835 (UK). Other early legislation affecting the first Pakeha local governments in Aotearoa included the Public Roads and Works Ordinance 1845 (8 Vict No 6) and the Constitution Act 1846 (9 & 10 Vict c 103 UK). 16 (22 March 1988) 487 NZPD 2883. See also G Bush "The Historic Reorganisation of Local Government" in J Boston and M Holland (ed) The Fourth Labour Government: Politics and Policies in New Zealand (2ed, Oxford University Press, Auckland, 1990) 233. See also D Ponter "Accountability of Regional Councils: an analysis of the accountability of Regional Councils" (Research Paper for the Degree of Master of Public Policy, Victoria University of Wellington, 1995) 31. 17 (28 June 1988) 489 NZPD 4739. See also J Kelsey A Question of Honour? Labour and the Treaty 1984-1989 (Allen & Urwin, Wellington, 1990) 162-186 ["A Question of Honour"]. 18 The Local Government Amendment Act (No 3) 1988 and the Local Government Amendment Act (No 2) 1989 provided the major reforming provisions. Local government is involved in the administration of several other statutes including the Reserves Act 1977 and the Biosecurity Act 1993. 19 This paper does not include detailed discussion of the impact of the Resource Management Act 1991 on local government-Máori relationships. See Office of the Parliamentary Commissioner for the Environment Proposed Guidelines for Local Authority Consultation with Tangata Whenua (Office of the Parliamentary Commissioner for the Environment, Wellington, 1992) for a simple analysis of local government's environmental management Treaty obligations under the Resource Management Act 1991. 20 "Report of the Hui on Máori Participation in Local Government" (1-3 March 1989). See A Question of Honour? above n 17, 186. See also J Hayward In Search of a Treaty Partner: who, or what is, the Crown? (PhD thesis, Victoria University of Wellington, 1995) 202 ["In Search of"]. 21 Máori Local Government Reform Consultative Group (MCG) "Minutes of the Second Meeting of the MCG" (State Insurance Building, Wellington, 9 June 1988) 4. The MCG recommended that the Treaty principles be incorporated in the local government reform legislation. 22 See A Question of Honour? above n 17, 178. See also In Search of above n 20, 202. 23 Local Government New Zealand Local Government Says (Local Government New Zealand, Wellington, 1996) 2 ["Local Government Says"]. 24 See Halsbury's Laws of England (4ed, Butterworths, London, 1996) vol 8(2), "Constitutional Law", para 353, 229. The term 'Crown' is considered to have a number of meanings. Compare New Zealand Law Commission Crown Liability and Immunity: A Response to Baigent's case and Harvey v Derrick (New Zealand Law Commission Report No 37, Wellington, 1997) 3 ["Crown Liability"]. The New Zealand Law Commission states that it is sometimes difficult to identify the Crown for the purposes of the New Zealand Bill of Rights Act 1990. It is arguable that the Treaty was an act of the state in all its manifestations. This argument suggests that it does not matter what form the state takes, Treaty obligations will attach to that form (local government for example). 25 See the Preamble of both the English and Máori texts. Both texts start with reference to Queen Victoria. Each Treaty article (in both texts) acknowledges Queen Victoria. The Privy Council has expressly affirmed that those obligations are now possessed by the Crown in right of New Zealand. See New Zealand Máori Council v Attorney-General [1994] 1 NZLR 513, 517 (PC). 26 See P Joseph Constitutional and Administrative Law in New Zealand (The Law Book Company, Sydney, 1993) 82 ["Constitutional and Administrative Law"]. Joseph provides a succinct discussion on the early Pakeha governmental system in New Zealand. 27 See Town Investments v Department of Environment [1978] AC 359, 393. See also Constitutional and Administrative Law above n 26, 490. 28 In Search of above n 20, 202. 29 It is submitted that the most graphic example of redefinition in recent times is the use of 'Treaty principles' to depict Treaty relationships rather than the actual words of the documents. This has emerged from the inclusion of the phrase 'Treaty principles' in statutes such as the Treaty of Waitangi Act 1975 and the State-Owned Enterprises Act 1986, and subsequent interpretation by the Waitangi Tribunal and the Court of Appeal. Lands case above n 3, 663 and 673. 30 Máori development has taken on a greater iwi and pan-Máori image. This contrasts with the hapu paradigm in which Máori lived before the Treaty was signed. Iwi above n 2. See also J Belich Making Peoples: a history of the New Zealanders from Polynesian settlement to the end of the nineteenth century (Allen Lane/Penguin, Auckland, 1996). Perhaps the central government should consider having open discussion with Máori on who each party considers the Treaty partners-parties are, especially considering the Máori fisheries debates which have resulted in prolonged intra-Máori litigation over what constitutes an 'iwi'. See Te Rúnanganui o Te Upoko o te Ika Association (Inc) and ors v The Treaty of Waitangi Fisheries Commission and ors (4 August 1998) unreported, High Court, Auckland, CP 122/95 for the most recent decision in this litigation. 31 See C Orange The Treaty of Waitangi (Allen & Unwin, Wellington, 1987) 141. Orange identifies occasions in the nineteenth century when Máori appealed directly to Queen Victoria over government activities purporting to have the authority of the Crown. In Search of above n 20, 283. Hayward makes the pertinent comment that central government has the ability one moment to assert its powers as the Crown, and the next moment to distance itself from Treaty responsibilities as the government. It is submitted that despite ambiguities in self-definition, central government exercises powers of Káwanatanga and therefore has Treaty obligations. 32 See Halsbury's Laws of England (4ed, Butterworths, London, 1980) vol 28, Local Government, para 1001, 424. See also KA Palmer Local Government in New Zealand (2ed, Law Book Company, Sydney, 1993) 23 ["Local Government"]. 34 Local Government Act 1974, s 119F(2). Local Government Act 1974, s 37zo. 35 Local Government above n 32, 29. 36 In this paragraph emphasis is added to words used in provisions requiring Treaty responsiveness. 37 The Resource Management Act 1991 requires local government to recognise and provide for the ancestral relationship of Máori and our culture with natural resources and other taonga (s 6(e)), to have particular regard to kaitiakitanga (s 7(a)), and to take into account the Treaty principles (s 8) [emphasis added]. There are many uncertainties surrounding the operation of these provisions, especially in regards to how and when consultation with Máori should occur. It is contended that these provisions redefine Treaty relationships between local government and Máori . 38 State-Owned Enterprises Act 1986, s 9. This section was the major issue of interpretation in the Lands case above n 3. 39 Education Act 1989, s 62. 40 Education Act 1989, s 181(b). 41 Section 2 of the Public Finance Act 1989 defines the Crown as: (a) Her Majesty the Queen in right of New Zealand; (b) Including all Ministers of the Crown and all Departments; (c) Does not include: -An office of Parliament; -A Crown entity; or -A State Enterprise in Schedule I of the State-Owned Enterprise Act 1986. 42 The Treaty of Waitangi Act 1975 established the Waitangi Tribunal. Treaty of Waitangi Act 1975, s 6 empowers the Waitangi Tribunal to investigate claims made by Máori that Treaty principles have been breached. 43 (23 June 1993) 536 NZPD 16167. Section 6(4)A of the Treaty of Waitangi Act 1975 states: Subject to sections 8A-8I the Tribunal shall not recommend under subsection (3) of section 6: (a) The return to Maori ownership of any private land; or (b) The acquisition by the Crown of any private land. 44 Manukau Report above n 3, 73. See also Orákei Report - Wai 9 (Department of Justice, Wellington, 1987) 136. 45 Ombudsmen Act 1975, s 13. Privacy Act 1993, s 2. The Local Government Official Information And Meetings Act 1987 provides a statutory framework (separate from the Offical Information Act 1982) for official information held by local government. 46 Hanton v Auckland City Council [1994] NZRMA 289 (Hanton). But see Greensill v Waikato Regional Council (6 March 1995) unreported, Planning Tribunal, Treadwell J, WO 17/95. 47 Hanton above n 46, 301. 48 F Brookfield "Constitutional Issues" [1994] NZ Recent Law Review 376, 379 ["Constitutional Issues"]. 49 This reflects the unclear constitutional position of the Treaty. 50 Hoani Te Heuheu Túkino v Aotea District Máori Land Board [1941] AC 308. 51 Lands case above n 3, 655 and 691; New Zealand Máori Council v Attorney-General [1994] 1 NZLR 513, 515 (PC); New Zealand Máori Council v Attorney-General [1996] 3 NZLR 140, 168 (CA). New Zealand courts maintain formal acceptance of the Te Heuheu rule. 53 New Zealand Máori Council v Attorney-General [1991] 2 NZLR 129, 135; Te Rúnanga o Wharekauri Rékohu Inc v Attorney-General [1993] 2 NZLR 301, 305; Ngai Tahu Maori Trust Board v Director-General of Conservation [1995] 3 NZLR 553, 561. 54 Barton v Director-General of Socal Welfare [1997] 3 NZLR 179. The court refused to follow R v R (1990) 6 FRNZ 232 which suggested acceptance of the Te Heuheu rule. See also Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680, 692. 55 Academic debate on the Te Heuheu rule has occurred. Some commentators assert that the orthodox legal position has been maintained by recent litigation - See A Mikaere "Máori Issues" [1994] NZ Recent Law Review 265, 279. Others maintain that the litigation challenges the orthodoxy. "Constitutional Issues" above n 48, 377. See also D Kalderimis "Revolution by Stealth: The Implied Reversal of the Rule in Te Heuheu Túkino" (Unpublished LLB (Hons) paper, Victoria University of Wellington, 2 October 1997). 56 This potentially gives rise to public law damages under the Treaty of Waitangi comparable to public law damages under the New Zealand Bill of Rights Act 1990 based on Simpson v Attorney-General [1994] 3 NZLR 667 [Baigent's case]. 60 Miller v New Zealand Railway Corporation (18 February 1993) unreported, High Court, Wellington, AP 61/92. This follows the tests adopted in the English jurisdiction for Crown agency. See Tamlin v Hannaford [1950] 1 KB 18. See also British Broadcasting Corporation v Johns [1965] Ch 32. The English cases suggest that the courts are interested in asking whether the entity acts on its own behalf, and whether it is a body exercising functions of the government in such a manner that it is entitled to Crown immunities. There is a strong inference that if the entity has commercial functions then it is not part of the Crown, even when the function is a public duty or service. See Waitákere City Council v Housing Corporation of New Zealand [1992] 3 NZLR 591 for New Zealand authority on this issue. See Kinross v GIO Australia Holdings Ltd [1995] 129 ALR 283 for Australian authority. 62 Local Government Says above n 23, 1. Compare Audit Office Report on Statements of Corporate Intent (Audit Office, Wellington, 1990) 8. The Audit Office reviews the accountability structures of State-Owned Enterprises and states that these structures are similar to local government authorities and public companies. 63 See Halsbury's Laws of England (4ed, Butterworths, London, 1974) vol 9, "Corporations", para 1210, 721. When functions of an entity are connected with matters which are essentially the province of government then an inference is more readily drawn that the entity acts on behalf of the Crown. See A E Currie Crown and Subject: a treatise on the rights and legal relationship of the people of New Zealand as set out in the Crown Proceedings Act 1950 (New Zealand Legal Publisher, Wellington, 1953) 41. Personal comment by Chris Koroheke (Cultural Liaison Officer) at the Auckland Regional Council, Auckland, 2 August 1998. 64 Constitutional and Administrative Law above n 26, 504. Joseph states that the Crown could include any public body administering a service within the province of government. 97 See New Zealand Office of Treaty Settlements Crown Policy Proposals on Treaty Claims Involving Public Works Acquisitions (New Zealand Office of Treaty Settlements, Wellington, 1996) 3. 104 See generally C Wickliffe "Indigenous Polities, self-government, law, citizenship and property rights: inside out, outside in: a comparative study of the United States of America, Canada and New Zealand" (LLM Thesis, Victoria University of Wellington, 1997). Wickliffe argues that the British common law protected an aboriginal right to self-government. Section 71 was not repealed until 1986. See generally L Cox Kótahitanga: The Search for Máori Political Unity (Oxford University Press, Auckland, 1993) 28.
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