17 February 2000 at 15:14:32
by Grant Hewison
Strategic Manager
Strategic Management/Treaty of Waitangi Team
Manukau City Council
Introduction
Manukau City Council is at present considering how best to formalise relationships between itself and local Maori.
One mechanism that has been adopted widely by other local authorities in New Zealand and which appears attractive is the use of written memoranda or agreements.1
In order to more fully understand the use of these memoranda or agreements, the Manukau City Council Treaty of Waitangi Team requested that a comparative analysis be undertaken of a range of existing instruments between Maori and local authorities.
In the first instance, several local authorities who were known to have these kinds of instruments were contacted. It was apparent from these initial discussions that a large number of instruments existed.
Following further consultation with the Manukau City Council Treaty of Waitangi Team, letters were posted to all local authorities in New Zealand in an effort to obtain as comprehensive a range of instruments as possible. A significant number of instruments were received and analysed. 2 Some Councils indicated that, for various reasons, they did not have these kinds of instruments,3 while other Councils indicated that they were in the process of developing them.4 In addition, to assist in the analysis, a number of published reports concerning the relationship between local authorities and Maori were also considered.5
A comparative analysis of these instruments follows. It includes an examination of the nature of the instruments, the legal significance of the instruments, the language in which the instruments are produced (English or Maori), the title by which the instruments are known, the parties to the instruments, the overall structure of the instruments, the purpose of the instruments, the background to the instruments, the goals of the instruments, the principles for the relationship between the parties (which usually draw on the Resource Management Act 1991, the Principles of the Treaty of Waitangi and the Local Government Act 1974), the typical mechanisms by which the principles may be implemented (usually outlining matters of representation, consultation, conflict resolution, resourcing, hearings and pre-hearing meetings, transfer of powers, the protection of sensitive information, as well as alteration and review), attestation clauses in the instruments and other significant clauses found in the instruments.
The General Nature of the Instruments
It is important to note at the outset that there are notable differences in the overall nature of the instruments analyzed.
Many of the instruments suggest there is a constitutional limitation on the authority vested in local government and that local authorities, therefore, only have obligations under the Treaty of Waitangi where legislation promulgated by central government establishes those obligations. Some point only to an obligation under the Resource Management Act 1991 and, in particular, sections 6(e), 7(a) and 8 of the Resource Management Act. Others note obligations under additional legislation, such as the Transit New Zealand Act 1989.
By contrast, other instruments suggest that while there is no explicit duty, there is still a general duty under the Local Government Act 1974 to carry out the functions of local government in accordance with the Treaty of Waitangi. Still other instruments point to a relationship between particular Councils and tangata whenua that has evolved over time and therefore created its own unique obligations.
Finally some instruments suggest there is a general constitutional duty derived from Court of Appeal case law, various Statutes and Treaty of Waitangi Tribunal reports that oblige local government to act in accordance with the Treaty of Waitangi.
Many of the instruments also follow a pattern. Indeed, in several instances it appears that one instrument has been used as a model for others.6
The pattern typically followed involves the instrument being divided into two separate parts. The first part usually provides an outline of the broad principles that will guide the overall relationship or “set the scene” between the parties. Often this part includes a discussion of the requirement to meet the principles of the Treaty of Waitangi, other legislative requirements, including those derived from the Resource Management Act 1991 as well as the “ground rules” by which the relationship will operate, including respective goals and objectives. This first part is then typically followed by a second detailing the more operational aspects of the relationship, including matters such as representation, consultation and resourcing.7
Some of the instruments analyzed did not follow the above pattern. They tended to deal with more specific outcomes in areas such as planning or resource management,8 representation,9 the establishment of Council Committees,10 or consultation.11 These instruments tended to prescribe specific operational matters, rather than the principles of any wider relationship.
The Legal Significance of the Instruments
It is difficult to determine whether the instruments analyzed are to be considered legally binding. Although most of the instruments are drafted in a manner that would make their obligations difficult to legally enforce, they often contain the elements necessary for them to be considered deeds or contracts. Consequently, it seems appropriate in developing these types of agreements that the parties be clear about whether they intend these instruments to create legally binding obligations or not. In the case of the draft instrument of Christchurch City Council, for example, it is provided that “the Runanga do not intend that this Charter should create legally binding rights and obligation[s] ... This Charter is a statement of good intention ...”.
Language
All of the instruments examined appear to have been produced only in the English language with the exception of the instrument signed by the Wellington Regional Council which is also in Maori.
There is, however, no indication in the instrument signed by the Wellington Regional Council about which language prevails in the event of a dispute over interpretation. It is worth noting that it is usual in legal documents produced in two or more languages for the instrument to indicate which language prevails in the event of a dispute.
Title
There are a range of different phrases or terms used as a title among the instruments. They include ‘Agreement’, ‘Partnership Agreement’, ‘Charter of Understanding’, ‘Memorandum of Understanding’, ‘Memorandum of Agreement’, ‘Memorandum of Partnership’, ‘Agreement of Understanding’ and ‘Operating Protocol’. In one instrument, the Maori term “Tutohinga” was used.
Other terms or phrases that might appropriately be used include ‘Compact of Association’, ‘Declaration’, ‘Covenant’, ‘Concordat” or ‘Statement’, depending upon the recognition that one might seek to accord to such instruments. It might also be appropriate to consider other Maori terms or phrases.
The Parties
The parties to the instruments are, as expected, on the one hand local authorities, and on the other, Maori groups or as the case may be, one Maori group.
With regard to the local authority party, care should be taken to determine the basis upon which the local authority is assenting to the instrument. Many of the instruments clearly state that the Council is “represented by its elected Council”. 12 It is typical for either the Mayor or the Chairperson (in the case of Regional Councils) to sign the instrument along with the Chief Executive.13 Relatively few of the instruments analyzed are sealed, however.14
In the case of the Maori parties, all of the instruments state who are the Maori parties. In many cases, tribal groupings are represented in the instrument through a legal entity such as a trust or incorporated society. For example, the instrument signed by Franklin District Council is with “the Hapu o Waikato represented by the Huakina Development Trust”. Apart from its agreement with tangata whenua, the Hutt City Council, for example, has also signed an agreement with the Taura Here o Rimutaka Incorporated Society.
It is significant to note the instrument signed by the Wellington Regional Council which provides that:
“Tangata whenua representation could be subject to application of new parties and by agreement between the party and the Council, and with the agreement of the other tangata whenua parties.” 15
By contrast, other instruments do not provide for Maori parties other than those specifically mentioned. The instrument signed by Hamilton City Council goes further by stipulating that it cannot be assigned to any Maori party other than the party with whom it was made. 16
Structure or Format
Often the instruments follow a particular structure or format. In some cases, a foundation instrument is produced providing for the general relationship between the parties which is then supported by further more detailed instruments. The Franklin District Council, for instance, has produced two instruments. The first is a ‘Memorandum of Understanding’ that outlines the key principles of the overall relationship between the parties, while the second ‘Memorandum of Agreement’ provides the operational details of the relationship.
Other instruments incorporate both the ‘principles of the relationship’ and the more ‘detailed operational provisions’ in the one document. 17
Purpose
Many of instruments analyzed provide for a section titled “Purpose” which outlines the reasons for establishing the instrument. The instrument signed by the Wellington Regional Council, for instance, provides for a wide purpose, being to “develop a relationship of mutual benefit” as well as to “establish and provide for a clear understanding of the basis and ongoing conduct of the relationship”. 18The instrument signed by the Auckland Regional Council is made in the context of the “principles of the Treaty of Waitangi (Te Tiriti o Waitangi) and the legislation which gives functions and powers to the Auckland Regional Council”.
In the case of other instruments, often their purpose is stated to derive only from the requirements of the Resource Management Act 1991. The Charter of Understanding signed by Southland Regional Council, Invercargill City Council, Southland District Council and Gore District Council, for instance, provides a relationship only “in the context of the Resource Management Act 1991.”
Background
Many of the instruments analyzed provide a section titled ‘Background’. Often this section outlines, in general terms, the legal relationship between the parties under the Treaty of Waitangi, the Resource Management Act 1991 and the Local Government Act 1974. The instrument signed by the Auckland Regional Council notes the existence of other statutes that may impact on this relationship, but does not list them specifically. The instrument signed by the Opotiki District Council outlines in general terms the capacity and constitutional nature of the Council. 19
While it appears useful to outline the legislative relationship between local government and Maori in these kinds of instruments, there appears to currently be some confusion about the precise nature of this constitutional relationship. 20
In the instrument signed by Auckland City Council, there is a section dealing with background titled “The Moral Context”, which provides, in part, that “The Treaty of Waitangi:Te Tiriti o Waitangi is the founding document of New Zealand. Maori culture: Tikanga Maori is also unique to New Zealand. These two factors give Maori a special place in New Zealand”.
The instrument signed by the Hawkes Bay Regional Council also contains a section titled ‘Background’, although here the instrument discusses the ‘history’ or ‘initial groundwork’ for the instrument itself as well as mentioning prominent people involved in developing the instrument. 21 In the instrument signed by Hurunui District Council, the area or district under Council jurisdiction is also defined, as are specific geographic areas of particular resource management interest for each runanga. 22 The instrument signed by the Hutt City Council notes that: “The first settlers who arrived at Petone in 1840 under the first organised scheme of settlement in New Zealand were met and befriended by the tangata whenua who greatly assisted the successful settlement of the Hutt Valley”.
Goals
Many of the instruments provide for a separate section that either outlines a goal or goals and objectives. The instrument of the Auckland Regional Council, for instance, provides that:
“The Council and [unnamed Maori] have a common goal. It is the sustainable management of the Region’s environment for the benefit and well-being of both tangata whenua and the regional community, now, and in the future.”
Principles for the Relationship
Almost all of the instruments provide for a section outlining the principles of the relationship between the parties. 23 The instrument signed by the Auckland Regional Council, for instance, begins this section with general provisions:
“relating to the relationship between the parties. These include matters, such as good-faith, cooperation, timely sharing of information, honesty of purpose, recognition of differing philosophical approaches to resource management, recognition of the different levels and forms of tangata whenua representation, the need for effectiveness and efficiency in delivering resource management for the wider community.” 24
The instrument signed by Auckland City Council also acknowledges the “authority of each [party] to exercise their responsibilities: Auckland City Council in exercising kawanatanga (governance), and tangata whenua in exercising rangatiratanga (customary authority) and kaitiakitanga (the ethic and practice of guardianship).”
Resource Management Act 1991
Almost all of the instruments outline the relationship between local government and Maori as established by the Resource Management Act 1991. 25 In particular, sections 6(e) (the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga), section 7(a) (kaitiakitanga) and section 8 (Treaty of Waitangi) are given prominence.26 While these sections of the Resource Management Act clearly establish the essential elements of the relationship in terms of resource management, it should also be noted that other sections of the RMA also contribute to the relationship. 27
Principles of the Treaty of Waitangi
Almost all of the instruments discuss the relationship between local government and Maori under the Treaty of Waitangi or the principles of the Treaty. The instruments do, however, tend to differ in their interpretation or emphasis of the ‘treaty relationship’. There are also different views reflected in the instruments concerning the constitutional or legal relationship between local government and Maori in terms of the Treaty. As noted earlier there appears to currently be some confusion about the precise nature of the constitutional relationship between local government and Maori. Nevertheless, almost all of the instruments recognize that the following leading principles of the Treaty have a significant bearing on the relationship between Maori and local government. They are typically expressed in the following way:
the ‘essential bargain’ (Maori ceded sovereignty and the right to govern to the Crown, in return for guarantees that the Crown protect rangatiratanga); 28
the ‘partnership/mutually beneficial relationship’ (imposes a duty on both tangata whenua and local government to interact in the best possible way with reason and respect);
‘shared decision-making’ (a balance of the kawanatanga role in Article I of the Treaty and reservation of rangatiratanga in Article II);
‘active protection’ (local government’s duty to protect tangata whenua interests is not simply a passive one, but is in all respects an active one); and
‘tribal self-regulation’ (local government has an obligation to legally recognize tribal rangatiratanga).
In addition to the above leading principles, many of the instruments also recognize further, that:
the principles of the Treaty of Waitangi are still undergoing development and interpretation, with the possibility of new principles emerging in future;
the principles describe a dynamic relationship recognizing that the Treaty is a living document;
local authorities and tangata whenua may decide to develop and adopt further specific principles under the Treaty of Waitangi (the draft instrument of Christchurch City Council, for example, includes a specific “Ngai Tahu Treaty Principle) 30; and
in exercising rangatiratanga and kaitiakitanga, tangata whenua are not bound just to the methods and technologies that were available at the time of signing the Treaty.
The instrument of the South Taranaki District Council also specifically provides that the Treaty of Waitangi “embodies the principle of a right of redress for past breaches, and that the existence of such a right embodies an expectation that further breaches will not occur [and that it] ... embodies the principle of equality, and the presumption that local government in co-operation with central and regional government will take such steps that promote the elimination of social and economic imbalances between Maori and Pakeha”.
Local Government Act 1974
The instrument developed by Rangitikei District Council includes a statement of the purposes of local government in New Zealand as provided for in section 37K of the Local Government Act 1974. 31
The instrument signed by the Auckland Regional Council also includes a section outlining the key provisions of the Local Government Amendment Act 1992 which provides for a relationship between Council and Maori over the ownership and management of parks.
Transit New Zealand Act 1989
Some of the instruments also acknowledge the Transit New Zealand Act 1989 32 and, in particular, section 27 of the Transit New Zealand Act which provides generally that before Transit New Zealand will grant funding for roading developments, local authorities are required to take into account Maori issues as they relate to the development. 33
Other Legislation
The instrument of Tauranga District Council notes that the Historic Places Act 1980 requires mandatory consultation with tangata whenua prior to making an application to modify or destroy any archaeological feature.
It might also be noted here that there is a range of other legislative requirements concerning Maori that appear to impact on the relationship between local government and Maori. 34 It may also be appropriate for this legislation to be recognized in these kinds of instruments.
Iwi Planning Documents
It also seems appropriate, where iwi planning documents exist, for reference to be made to them in this part of the instrument. 35
Implementing the Principles
All of the instruments analyzed provide for the operational elements of the relationship between the parties. Typically these comprise several elements, including: representation; consultation; conflict resolution; resourcing; hearings; transfer of powers; conflicts of interest, and the protection of sensitive information.
The following part of this report analyses each of these elements. In undertaking this analysis, the report will, for each of these elements, include a comprehensive range of provisions from a comparison of all the instruments. Consequently, while some of the provisions included below will be common to many of the instruments, others will have been taken from only one or very few.
Representation
Almost all of the instruments provide for representation. In summary, the following points can be made about representation:
the concept of representation is usually defined in the instrument, and is generally agreed to be those mechanisms which provide for individuals and groups authorized to speak for tangata whenua to participate in Council decision-making;
often the instruments specifically recognize that all parties retain the right to choose their own representatives;
there is often recognition in the instruments that in the case of each iwi, the mechanism for representation may differ;
there is often provision for a “one to one” relationship between individual iwi and the Council, apart from multi-iwi meetings or relationships; 36
oftentimes a multi-iwi or inter-iwi representative group is provided for to allow a forum for the exchange of views. A forum of this kind might be used where an issue affects more than one iwi, for monitoring the effectiveness of the instrument and for reviewing Council resource management policies and plans;
there is often provision for iwi representatives to attend Council meetings, with the right to address any Committee within Council or the full Council (usually subject to Council’s standing orders);
the instruments frequently encourage Council and iwi members, where appropriate, to meet on marae or at other venues nominated by tangata whenua;
joint working parties are commonly encouraged in the instruments;
some of the instruments acknowledge that Council staff involved in facilitating liaison between Council and tangata whenua do not act as representatives of iwi views;
provision is made, in certain instruments, for community groups to be involved in meetings and other activities taking place between Council and tangata whenua;
the instrument signed by Kapiti Coast District Council provides that the “Council recognizes the advocacy role of the Tangata Whenua in issues affecting the Taura Here”, and
a few of the instruments stipulate that tangata whenua must ensure that adequate and appropriately skilled personal are available to discuss items of importance which are intended for inclusion in Council agendas.
Consultation
All of the instruments provide for consultation. In summary, the following points can be made about consultation:
the instruments commonly include a statement concerning the duty on Council to consult, the duty of tangata whenua to respond and the levels of resourcing required to fulfill these duties;
a definition of the concept of consultation is typically included in the instruments, requiring that consultation be genuine, that there be sufficient information provided, sufficient time to respond, that the parties keep an open mind, and that the duty to consult is an active one to be undertaken in good faith;
the instruments often acknowledge that tangata whenua have a status that is above that of other interest groups and the general public;
some of the instruments acknowledge that there are different levels of iwi decision-making;
there is usually a clear outline in the instruments about when consultation is to take place. Some of instruments provide a very detailed outline, while others provide a more general statement. In those providing a very detailed outline, there is often:
- a requirement that Council ensure tangata whenua are kept informed of District Plan preparation, District Plan Review and Changes, Annual planning, all Agendas and Minutes of Committee and full Council meetings, and are consulted prior to the District Plan being publicly notified with tangata whenua receiving copies of all submissions and objections; 37
- provision for consultation or notice concerning all notified applications (ensuring that sufficient information is available);
- a requirement that all applicants consult directly with tangata whenua and, in particular, tangata whenua having mana whenua status;
- a stipulation that non-notified resource consent applications be referred to tangata whenua for comments when significant issues are likely to arise; 38
- where Council is making it’s own application for a resource consent, a prerequisite that advice be sought from tangata whenua; and
- where any resource consent application is of particular interest, encouragement for Council to arrange inspections and on-site meetings.
a few of the instruments indicate those subject areas where consultation should take place (such as on the physical environment, social environment, economic environment, cultural environment (including matters related to taonga, 39 Protocol or Tikanga Maori 40), tourism, rating, signage and public process); 41and
most of the instruments outline the expectations of tangata whenua in the consultation process (including the identification of appropriate contact persons, recognition of time constraints and, where necessary, ensuring liaison with other tangata whenua groups).
In addition, it is worth noting the instrument signed by Auckland City Council which provides that while fees may be charged for consultation initiated by Council, “organisations and iwi who initiate the consultation carry their own costs”.
The instrument signed by Rodney District Council also contains a notable provision which states that: “In the case of significant or especially contentious issues either Te Hao or the Council may request a :Chief to Chief” meeting”. The draft instrument of Christchurch City Council, similarly provides for occasional formal consultation at a political level between the Mayor, Councillors and leaders of tangata whenua. 42
A number of important publications and court cases have considered the respective responsibilities regarding consultation between Maori and local authorities. For further information it is suggested that these sources also be considered in developing any instrument. 43
Dispute Resolution
Many of the instruments provide for the resolution of disputes between the parties. In summary, the following points can be made about dispute resolution:
there is often a recognition in the instruments that there will be situations where disputes will arise between the parties;
that, in situations where a dispute arises, the parties should endeavour to reconcile their differences through dialogue, mediation and negotiation. An independent mediator might be sought or the matter referred to arbitration, if the dispute cannot be resolved. In one instrument, for example, the parties are directed to “initially refer any such dispute to the Local Government Commission for the appointment of an independent mediator”;
the instruments frequently provide that the parties should avoid recourse to the media or other bodies, and in particular, legal processes to resolve conflict; and
there is an acceptance, in a few of the instruments, that where the dispute cannot be resolved the agreement may have to be terminated.
The instrument signed by Taupo District Council contains a very useful Conflict Resolution Procedure as an Appendix.
Resourcing
Almost all of the instruments provide for resourcing of the relationship through the instrument or subsequent instruments. In summary, the following points can be made about resourcing:
a recognition in many of the instruments concerning the limitations and constraints on each party, but in particular tangata whenua, in respect of resources;
most of the instruments provide that it is incumbent upon Council to supply resources to facilitate tangata whenua involvement in the relationship. However, there is also in some instruments recognition that because Council’s resources are derived primarily from rate-payers that they are necessarily limited, and that Council is under a statutory obligation to set priorities and demonstrate accountability and efficiency; 44
resourcing is often identified to include financial, technical expertise, information, accommodation, equipment and other forms of support. There is, in some of the instruments, acknowledgment that Council will on an annual basis establish relevant work programmes and build these into the Council’s Annual Plan process. In particular, appropriate areas of resourcing identified in the instruments include that for:
- the making of submissions in the preparation, change and review of resource management polices and plans;
- administrative servicing, travel, and meeting allowances; and
- assistance and advice in the preparation of iwi planning documents.
some of the instruments recognize that contracting out of services to tangata whenua may be appropriate;
one instrument noted that tangata whenua should expect support from Council for their initiatives and projects that could be funded from alternative sources (such as the Lotteries Commission); and
in some of the instruments, there appears a separate schedule or specific sum that is payable to tangata whenua for the period of the agreement.
Hearing and Pre-hearing Meetings
Most of the instruments provide for a relationship between the parties with regard to hearings and pre-hearing meetings. In summary, the following points can be made:
there is often recognition in the instruments that hearings are quasi-judicial processes;
provision in some instruments that Council encourage consultation before hearings and pre-hearing meetings;
a stipulation, in some instruments that Council provide, where appropriate, for tikanga Maori, marae hearings and te reo Maori; and
in relation to hearings under the Resource Management Act, provision, in certain instruments, for the appointment of people with recognized expertise in tikanga Maori, Treaty issues or other skills as hearings commissioners.
It is also worth noting the instrument signed by Hurunui District Council which provides that “Runanga reserve the right to not assist Council in pre-hearing and hearing processes particularly if this potentially limits their other involvement, for example, to judicial appeal.”
Transfer of Functions
Some of the instruments provide for the possible transfer of functions from Council to tangata whenua. In summary, these instruments note that the Resource Management Act provides for the transfer of functions to iwi authorities and that in these circumstances, Council should assess: the possible methods for transferring functions to iwi authorities; its duties under the Act (section 33); the overall community of interest and its duties to ensure efficiency and capability on the part of the iwi authority. Some instruments also encourage joint management of resources.
There is also recognition, in many of the instruments, that Council is required to consult tangata whenua when considering the transfer of its functions, powers and duties to third bodies. Council is also required to monitor the effect of the transfer on tangata whenua and ensure that the third body is meeting Council’s duties .
Conflict of Interest
Some of the instruments acknowledge that in some circumstances a conflict of interest may arise. The instrument signed by Hamilton City Council, for instance, stipulates that: “Huakina Development Trust, in carrying out the terms of this Agreement, will immediately notify Council of any situation whereby this Agreement may be compromised by the Trust undertaking work or providing services to any other party ... In the event of such a situation arising both parties will meet to agree on methods to resolve any possible conflict of interest.”
On the other hand, some of the instruments acknowledge the potential for conflict on the part of local authorities between the requirements of the instrument and statutory obligations. The instrument signed by Hamilton City Council, for example provides that: “In the event of any conflict or inconsistency between the obligations under the agreement and obligations under statutory provisions then the obligations under the agreement will not apply. 45
Protection of Sensitive Information
Some of the instruments provide for the protection of sensitive information. In summary, the instruments acknowledge that tangata whenua may provide Council with sensitive and confidential information. In these circumstances, Councils should undertake to protect this information and restrict access to it, in accordance with the Local Government Official Information and Meetings Act 1987 (ss. 6 and 7) and the RMA (s. 42(i)(a)). Where necessary, Council should also give due respect and recognition to “silent files” or plans held by tangata whenua.
On the other hand, some of the instruments also require that tangata whenua to undertake to protect any sensitive, commercially sensitive or confidential information that Council may give to them.
Alteration and Review of the Instrument
Many of the instruments provide for their alteration and review. In the case of the instrument signed by the Auckland Regional Council, for instance, it is provided that: “The Agreement can be changed at any time by mutual agreement of the parties. The Agreement will be reviewed by both parties every three years, with the first review commencing in early 1996.” The instrument signed by Hamilton City Council similarly provides for a specified term 46 and also that any amendments must be in writing. The instrument signed by Kapiti Coast District Council provides for a review of the agreement “within the first six months of every triennium of the Council.”
Attestation Clause
All of the instruments include some form of attestation clause, although some are more detailed than others. The instrument signed by the Auckland Regional Council, for example, provides that: “This Agreement is freely entered into by all parties in a spirit of goodwill and in accordance with the goal and principles stated in clauses 12 and 13. The parties recognize the benefits of the Agreement to themselves, to the regional community and the Region’s environment. The Agreement is intended to form the basis of a meaningful long-term relationship and may be amended or expanded by agreement. The Agreement is a statement of good intention.”
Alternate Clauses
In addition to those described above, there are a number of clauses, perhaps only appearing in one of the instruments, that are also worthy of note:
in the instrument signed by Auckland City Council, provision is specifically made for the development of joint projects or initiatives further to the instrument; 47
also in the instrument signed by Auckland City Council, provision is made for the identification by each Maori party of areas of specific interest for that party;
in the instrument signed by Franklin District Council, there is an indemnity clause which provides that “at no time will the Council bear responsibility or liability in respect of any unlawful action arising out of the conduct of the [other party] or [their] agents; 48
in the instrument signed by Hamilton City Council, provision is made for the monitoring of certain resource consents by tangata whenua;
co-operation in making joint submissions to other agencies on resource management issues is also a matter encouraged by the instrument signed by Hamilton City Council;
the instrument signed by Hamilton City Council also specifically states that the “agreement is the entire agreement and includes all prior agreements both written and verbal”;
in the instrument signed by the Hawkes Bay Regional Council provision is made for lifting the general awareness within Council concerning the significance of Maori issues and the importance of education and training, particularly for Officers and Councillors; 49
in recognition of the importance of waahi tapu the instrument signed by Hawkes Bay Regional Council outlines the duties of Council concerning waahi tapu;
the instruments signed by Kapiti Coast District Council and the Matamata-Piako District Council both contain a glossary of Maori terms (including hapu, iwi, kaitiakitanga, mana whenua and rohe);
in the instrument signed by Manukau City Council, the instrument is limited to the Council and does not encompass work undertaken by “Manukau Works, Manukau Consultants or any other such Council Business Unit or LATE, which shall make their own arrangements with [tangata whenua]”.
Conclusions and Recommendations
As noted earlier in this report, Manukau City Council is at present considering how best to formalise relationships between itself and tangata whenua. One of the mechanisms being considered is the negotiation of formal written agreements between itself and tangata whenua.
The instruments examined in this report provide useful references or models for the development of these kinds of written agreements. While the above analysis has raised many important points that should be considered in developing any written instrument, it might be opportune here to underscore several points of particular significance:
there will be at least two parties to the instrument - Council and Maori. It seems important that Council ensure the Maori party or parties to the instrument are adequately resourced throughout any negotiations;
consideration should be had at the outset about whether Council is seeking to negotiate a broad instrument encompassing an overall relationship with tangata whenua, or a more limited instrument relating to particular activities (such as resource management, representation or consultation);
Council should determine whether the instrument is to be considered legally binding;
Council should examine whether the instrument should be in English, Maori or both languages;
where Council is seeking to establish relationships with more than one Maori party, there might be consideration about whether to establish one written instrument for all Maori parties or separate distinct instruments; and
there is a need for further clarification of local government’s constitutional relationship with Maori.
A full set of the instruments referred to in this report can be obtained from the Treaty of Waitangi Team, Manukau City Council.
Notes
1 These kinds of instruments have also been used overseas between local authorities and indigenous peoples. See, for example, Agreements between Indian Nations and Local Governments, at internet website www.halcyon.com/FWDP/treaties.html.
2 The following instruments were received and examined:
the Memorandum of Agreement between Tangata Whenua o Tamaki Makaurau and Auckland City Council, dated October 1996;
the Agreement of Understanding between [unnamed] and the Auckland Regional Council, dated February 1995;
Carterton District Council Consultation with Tangata Whenua (People of the Land) for Carterton District;
drafts of the proposed Charter of Understanding between Te Ngai Tuahuriri Runanga and Christchurch City Council and draft Consultation Guidelines for Local Authorities with Te Runanga o Ngai Tuahuriri (these drafts were still being negotiated at the time this paper was completed) ;
the Memorandum of Understanding between the Nga Hapu o Waikato (represented by the Huakina Development Trust) and the Franklin District Council, dated July 1993;
the Partnership Agreement between Huakina Development Trust and Hamilton City Council;
the Charter between the Hawkes Bay Regional Council and the Maori Committee of Council, dated May 1994 (this instrument establishes and outlines the responsibilities of the Maori Committee of Council);
the Operating Protocol for the Tangata Whenua and Hurunui District Council;
the Declaration of Understanding and Code of Conduct between the Hutt City Council and Te Runanganui o Taranaki Whanui ki Te Upoku o Te Ika a Maui Incorporated Society, dated 25.5.1992. See also the Basis of Consultation between Hutt City Council and Taura Here o Rimutaka, dated 16.5.1996;
the Memorandum of Partnership between Ati Awa ki Whakarangotai Inc, Te Runanga o Raukawa Inc, Te Runanga o Toa Rangatira Inc and Kapiti Coast District Council, dated 9 February 1994;
A Charter of Understanding between the Hauraki Maori TrustBoard and the Matamata-Piako District Council (draft);
the Declaration of Understanding and Code of Conduct between the Hutt City Council and Te Runanganui o Taranaki Whanui ki Te Upoku o te Ika a Maui Incorporated Society(undated) and the Basis of Consultation between the Hutt City Council and Taura Here o Rimutaka, dated 16 May 1996;
the Agreement between Manukau City Council and the Huakina Development Trust in respect of Environmental Issues, dated June 1995 (this agreement has since been terminated);
a Charter of Understanding between the Hauraki Maori Trustboard and Matamata-Piako District Council (draft);
the document outlining the relationship between iwi in the region and Northland Regional Council via Te Kotahitanga O Te Tai Tokerau, supported by the performance contract 1996/97;
the Memorandum of Understanding between Opotiki District Council and the Hapu and Iwi of the Opotiki District, dated 14 August 1995;
Memorandum of Understanding (MOU) between the Otago Council and Kai Tahu ki Otago within Otago for the Implementation of Effective Consultation and Liaison, and Protocol concerning Consent Application Processing Otago Regional Council an Kai Tahu ki Otago, both dated 19.12.96;
Agreement Porirua City Council and Te Runanga O Ngatitoa Rangatira - Contract No. 1 - Work for District Plan under Resource Management Act, and Agreement Porirua City Council and Te Rununga O Ngatitoa Rangatira - Contract No. 2 - General Consultation to the Porirua City Council, both dated 19.3.93;
Statement of Principles and Agreement between Rodney District Council and Te Hao O Ngati Whatua dated 13 September 1994;
the Charter of Understanding between Southland Regional Council. Invercargill City Council, Southland District Council, Gore District Council and Te Ao Marama Incorporated (Ngai Tahu (Murihiku) Resource Management Group) representing Te Runaka o Awaroa, Hokonui Runanga, Oraka-Aparima Runaka and Waihopai Runaka;
the South Taranaki District Council’s Iwi Liaison Protocol, dated 1990;
the Declaration of Understanding between Iwi O Taranaki and the Taranaki Regional Council and the Code of Conduct for Taranaki Regional Council;
the Agreement between Ngati Kahungunu o Wairarapa represented by The Proprietors of Mangakino Township Corporation as Trustee of Pouakani 2 Trust and Taupo District Council. Taupo District Council (the Taupo District Council is also seeking to develop Memoranda of Understanding with other iwi groups, but due to difficulties in the relationship between these groups and Council, the agreements have not yet been finalised)(pers com., S. Rowbotham, 23.1.97);
the Memorandum of Understanding between the Wellington City Council and Te Runanga o Toa Rangatira Inc., dated September 1996;
the Charter of Understanding between Te Tangata Whenua o Te Upoko o te Ika a Maui and Wellington Regional Council (Te Tutohinga o Te Whakaaetanga) , dated November 1993.
3 For those local authorities without instruments, see:
Ashburton District Council(the Council has, however, on “two occasions met at the Papa Tipu Marae at Arowhenua and resulting from the discussions, the Council and the iwi have an understanding ... in respect to the types of consents the iwi wish to be involved with, the type of information the iwi wishes to be forwarded on a regular basis (list of consents granted), and an understanding that there will be reasonably regular (twice yearly or thereabouts) meetings between the Runaka and the Council’s officers)(pers. com., M.A. Singleton, 9.1.97);
Banks Peninsula District Council (pers com., 9.1.97);
Bay of Plenty Regional Council (at this stage the Bay of Plenty Regional Council has not concluded any agreements with any of the 30 plus tangata whenua groups who claim iwi status within the Council’s regional boundaries. The Council is still formulating long term plans on how they might best assist specific iwi groups. On a collective scale, Council has made some progress in that they have established three groups called Maori Regional Representatives Committees to provide a liaison service between Council and iwi.)(pers. com., Waaka Vercoe, 9.1.97);
Buller District Council (pers. com., 17.1.97);
Central Hawkes Bay District Council (the Council “does not have any such agreements between council and the local iwi as the majority of council business that requires iwi consultation etc. is carried out through Council’s Maori Consultative Committee”)(pers. com., W.J.Lampp, 14.1.97);
Central Otago District Counci (the Council has limited involvement with Maori reflecting the limited Maori settlement in Central Otago. Maori involvement tends to be on resource management or specific issues. However, in the preparation of the District Plan, the Council established a formal consultative group with the Combined Runanga - Huirapa, Otakou, Moeraki and Hokonui.)(pers com. Stephen Green, 23.12.96);
Clutha District Council (pers. com., 17.1.97);
Grey District Council (pers com., 24.12.96);
Far North District Council (pers com., S. Wilkinson, 31.1.97);
Hauraki District Council (pers com., IK Laurenson, 23.1.97);
Kaikoura District Council (pers. Com., E. Parker, 27.1.97);
Kaipara District Council (although “the Council has an excellent working relationship with the runanga of the Ngati Whatua”)(pers com., Jack McKerchar, 7.1.97);
Kawerau District Counci (while the Kawerau District Council does not have any formal agreements with tangata whenua, it is perhaps in a unique situation, having a Maori Mayor and 30% of Councillors identifying themselves as Maori. This “seems to result in Maori perspectives on issues being considered as part of any decision making process in any case rather than as a separate exercise”)(pers com., P. Mickleson, 6.1.97);
Masterton District Council (pers. com., KJ Montgomerie, 27.1.97);
New Plymouth District Council (pers com., AB Lile, 5.3.97);
District Council of Papakura (pers com., G.W. Maskill, 7.1.97);
Queenstown Lakes District Council (although they have no formal documents, Queenstown Lakes District Council consult as is necessary with the Ngai Tahu as issues arise. “This is usually pertinent to proposals put forward by that iwi, or consultation that is deemed appropriate with Ngai Tahu for development of Council projects.”)(pers com., Kieran Shaw, 24.12.96);
South Waikato District Council (pers. com., L. Padman, 15.1.97);
Stratford District Council (pers. com., K. Broughton, 21.1.97);
Tararua District Council (the Maori Land Court under the Te Ture Whenua Maori Act determined the most appropriate representatives of the hapu, iwi and Maori of the Tararua District)( pers. com., U. Chandra, 23.1.97)
Timaru District Council (pers tel. com., 3.1.97);
Upper Hutt City Council (although they maintain a close liaison with Orongomai Marae in Upper Hutt and include representatives of this marae in all matters involving public and specialist consultation)(pers com., 24.12.96);
Waimate District Council (the only agreement is a Council resolution agreeing to the local Upoko being on the Resource Management Committee with full speaking and voting rights during the duration of the District Plan process)(pers com., Brent Donaldson, 31.12.96);
Wairoa District Council (however, the Council does have a substantial Maori Policy)(pers. com., T. Waaka, 17.1.97);
Waitaki District Council (although the Council has formalised its relationship with iwi in the Takata Whenua section of its proposed District Plan)(pers. com., J. Chandra, 6.1.97);
Waitomo District Council (although Council has adopted a consultation process in its draft Strategic Plan)(pers. com., P. Davey, 23.1.97);
West Coast Regional Council (pers. com., K. Edwards, 7.1.97);
Western Bay of Plenty District Council (pers. com., J. Rauputu, 9.1.97);
Whakatane District Council (although there is a Memorandum of Understanding concerning custodianship of Waka “Toi O Mataatua” between the Whakatane District Council and the Whakatane District Council Iwi Liaison Committee)(pers. com., C. Hall, 10.1.97).
4 For those local authorities in the process of developing instruments, see:
Christchurch City Council (three draft agreements between Council and tangata whenua have been developed, but are awaiting completion of discussions which is hoped for in 1997. The three drafts are presently titled “Charter of Understanding between Te Ngai Tuahuriri Runanga and Christchurch City Council”, “Charter of Understanding” and “Consultation Guidelines for Local Authorities with Te Runanga O Ngai Tuahuriri” (pers. com., M. Maquire, 24.1.97);
Nelson City Council (although the Council does not yet have a formal understanding with iwi in the Nelson region, it is currently working towards implementation of a formal memorandum of understanding. Currently, the closest the Council has to a statement with regard to iwi is in the Regional Policy Statement)(pers. com., R. Witte, 16.1.97);
New Plymouth District Council (pers tel. com. Mr. David Thorpe);
Palmerston North City Council (at present the Council has “not entered into any written agreement/memorandum/charter/partnership contract or accord. Our Maori Policy Section has drafted a memorandum based on examples of other local and regional authorities.”)(pers. com., Na Te Kenehi Teira, 23.1.97);
Rangitikei District Council (pers. com., P. Taylor, 7.1.97);
South Wairarapa District Council (a Maori Standing Committee was established in 1996 with one objective to draft a memorandum of understanding with the Council. That memorandum is in the process of being developed)(pers com., R.M. Smith, 6.1.97);
Tauranga District Council (although the Council has adopted a report and associated recommendations concerning consultation with tangata whenua)(pers com., M. Batchelor, 31.12.96);
Waimakariri District Council (pers. com., L. Woudberg, 16.1.97);
Waitakere City Council (pers. com., G. Parata, 6.5.97)(while Waitakere City Council is in the process of developing formal agreements with local iwi, the Council does however, contract, on an annual basis, for services to be provided from local iwi to Council).
5 See, for instance, Parliamentary Commissioner for the Environment, Proposed Guidelines for Local Authority Consultation with Tangata Whenua, (Parliamentary Commissioner for the Environment, Wellington: June 1992); Diane L Crengle, The Greatest Good for the Greatest Number? Rangatiratanga and the Reform of Local Government 1987-1990, (Unpublished LLM Research Paper, Law Faculty, Victoria University of Wellington: 1993); Ministry for the Environment, The Resource Management Act - Kia Matiratira - A Guide for Maori (Ministry for the Environment, Wellington: June 1992); Te Upoko Runanga O Te Ngai Tuahuriri, Draft Consultation Guidelines for Local Authorities with Te Runanga O Ngai Tuahuriri (Te Runanga O Ngai Tuahuriri, Christchurch: October 1994); Wellington City Council, Review of Wellington City Council’s Reponsiveness to Maori (Wellington City Council, Wellington: June 1995); Maui Solomon and Robert Schofield, The Resource Management Act and the Treaty of Waitangi - A Starting Point and Framework (Taranaki Regional Council, Stratford: August 1992); Herbison Associates, Local Authorities and the Treaty of Waitangi (Auckland City Council Department of Planning and Community Development, Auckland: 1988).
Other reports of particular significance for Manukau City Council are: Awaroa ki Manuka, Ngaa Tikanga o Ngaati te Ata - Tribal Policy Statement (Awaroa ki Manuka, Waiuku: Hoongonui 1991); Huakina Development Trust, Waikato Iwi Resource Management Plan: Manuka (Huakina Development Trust: 1996) and Manukau City Council, Response to the Finding of the Waitangi Tribunal on the Manukau Claim (Manukau City Council, Manukau City: September 1991).
6 It appears that the instrument developed by the Wellington Regional Council is the model for a number of later instruments. The Charter of Understanding signed by Southland Regional Council, Invercargill City Council, Southland District Council and Gore District Council is noted by one Council as “largely based on the Wellington Regional Council/Iwi charter” (pers. com., W. Tuckey, 23.1.97).
7 See, for instance, the Memorandum of Agreement between Tangata Whenua o Tamaki Makaurau and Auckland City Council; the Memorandum of Understanding between the Nga Hapu o Waikato (represented by the Huakina Development Trust) and the Franklin District Council and the Charter between the Hawkes Bay Regional Council and the Maori Committee of Council, dated May 1994.
8 See, for instance, the Agreement between Manukau City Council and the Huakina Development Trust in respect of Environmental Issues; the Protocol concerning Consent Application Processing between Otago Regional Council and Kai Tahu ki Otago; the Agreement between Porirua City Council and Te Runanga O Ngatitoa Rangatira - Contract No. 1 - Work for District Plan under Resource Management Act; Whangarei District Council - Professional Services Contract 96032 - District Plan Ngati Wai Consultation.
9 The Marlborough District Council, for instance, has “an agreement with the local iwi for them to select representatives as members on certain Council Committees with the same voting rights as Councillors ... The Committees with iwi representation are Resource Management and Regulatory; Works and Services’ and Community Services and Development” (pers com., J. North, 14.1.97);
10 See, for instance, the Charter between the Hawkes Bay Regional Council and the Maori Committee of Council, dated May 1994.
11 See, for instance, Carterton District Council Consultation with Tangata Whenua (People of the Land) for Carterton District; the Agreement with Huakina Development Trust re District Plan Consultation which forms Appendix 1 of the Partnership Agreement between Huakina Development Trust and Hamilton City Council and the Memorandum of Understanding (MOU) between the Otago Council and Kai Tahu ki Otago within Otago for the Implementation of Effective Consultation and Liaison.
12 See, for instance, the instruments signed by the Auckland Regional Council, Franklin District Council and Wellington Regional Council, and the Charter of Understanding signed by Southland Regional Council, Invercargill City Council, Southland District Council and Gore District Council.
13 See the instrument signed by Auckland City Council, for instance, which provides that:
“Auckland City Council is represented by its elected Council led by His Worship the Mayor. The implementation of Council policy and the administration of the Resource Management Act and other legislation is the responsibility of the Chief Executive.”
14 See, however, the instrument signed by Kapiti Coast District Council, to which are affixed the common seals of the District Council and all Maori parties.
15 See also the language used in the instrument signed by Auckland City Council. Here the Maori parties are listed with the rider that “[r]esearch is being undertaken by our Council to determine who are tangata whenua through land ownership from 1820 - 1840 approximately - this list [of Maori parties] will more likely change”. See also the instrument signed by the Auckland Regional Council. The instrument signed by the Kapiti Coast District Council notes that “The Tangata Whenua of the District are at present represented by ...”. In addition, as noted by the Parliamentary Commissioner for the Environment:
“This raises two issues ... exactly who are the tangata whenua to be consulted; the necessity for tangata whenua to make known their spokesperson/s or organisation with which to consult or preferred channel of contact; and the necessity for regional councils to ensure that they are consulting with the appropriate representatives. In this regard the council should be proactive but should not seek to resolve inter-iwi disputes which are for iwi to resolve themselves in their own way. If there is debate going on between iwi groups for tangata whenua status over the same area, the council could in the interim, if agreed by both groups, accord them equal status until the matter has been resolved by iwi themselves.”
Parliamentary Commissioner for the Environment, Proposed Guidelines for Local Authority Consultation with Tangata Whenua, (Parliamentary Commissioner for the Environment, Wellington: June 1992), pg. 22.
16 See the instrument signed by Hamilton City Council which states that: “The [tangata whenua party] shall not assign its rights, duties or obligations under this contract without the express consent of Council. Notwithstanding this Council outlines its support for the [tangata whenua party] to maximise involvement of tangata whenua who have Mana O Te Whenua within the district in providing services in this agreement.”
17 The instruments signed by Auckland and Wellington City Councils follow a format that is comparable to those of Wellington and Auckland Regional Councils.
18 In other examples, the instrument signed by the Franklin District Council notes that it is “to record their mutual understanding of the respective partnership responsibilities”, while the instrument signed by Manukau City Council provides that it is to give expression to both the “relationship” and “commitment of partnership” between the Council and the Huakina Development Trust on environmental and resource management issues. See also the instruments signed by Auckland City Council, and the Charter of Understanding signed by Southland Regional Council, Invercargill City Council, Southland District Council and Gore District Council.
19 The instrument of the Opotiki District Council provides that: “The Council is an agent of the Crown. It also represents the local community in carrying out functions as specified in the Local Government Act 1974 and all other legislation including the Resource Management Act 1991. The Council is an agent of the democratic process elected to protect the rights of all members of the community, Maori and non-Maori.”
20 The constitutional relationship between local government and Maori or the Treaty of Waitangi does not appear to be well understood nor adequately discussed in the literature.
21 See also the instrument signed by Hurunui District Council.
22 See the instrument signed by Hurunui District Council, which states that: “The District extends from the upper Waiau-toa (Clarence) and Tutae puta puta (Conway) in the north, south toward the Rakahari (Ashley), and, from the Main Divide out to the coast, and thus involves several Runanga, Kaikoura, Tuahuriri and Katiwaewae.” The instrument also contains a map of the district.
23 See, for example, the instruments signed by Auckland City Council, Auckland Regional Council, Franklin District Council (which provides for a separate Memorandum outlining the principles of the relationship) and Wellington Regional Council.
24 See also, in this regard, the instrument signed by Auckland City Council, and the Charter of Understanding signed by Southland Regional Council, Invercargill City Council, Southland District Council and Gore District Council.
25 See, for example, the instruments signed by Auckland City Council, the Auckland Regional Council, the Taupo District Council and the Wellington Regional Council. See also the report by Taranaki Regional Council, The Resource Management Act and the Treaty of Waitangi (Taranaki Regional Council, Stratford: 1992).
26 Section 6(e) of the Resource Management Act 1991 provides that:
“In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognize and provide for the following matters of national importance: ... (e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.”
Section 7 of the Resource Management Act 1991 provides that:
“In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to - ... (a) Kaitiakitanga:”
Section 8 the Resource Management Act 1991 provides that:
“In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).”
Some of the instruments also suggest that “protection afforded to Maori under Part II of the [Resource Management Act] is not absolute. In all cases there will be a requirement to balance the Maori interest against other interests required to be considered under the Act.” See, for example, the instruments signed by the Auckland Regional Council and the Wellington Regional Council.
27 See, for example, section 2(1) (definitions, including maataitai, mana whenua, tangata whenua, taonga raranga, tauranga waka, tikanga Maori, iwi authority, kaitiakitanga), section 11(1)(c) (reference to Maori Affairs Act re subdivisions and State Owned Enterprises Act 1986 s27D), section 33(1)(a) (transfer of functions by local authority to iwi authority), section 39(2)(b)(reference to tikanga Maori and receiving evidence in Maori), section 64(2)(b)(ii) (district plans and iwi management plans and taiapure fisheries), section 93(1)(f) (notification of iwi authorities of resource consent applications), First Schedule, Part I, clause 3(1)(d) (local authority to consult with tangata whenua when preparing policy statements), Second Schedule, Part II, clause 2(c) (reference to waahi tapu in district policy statements and plans). See also Ministry for the Environment, The Resource Management Act - Kia Matiratira - A Guide for Maori, June 1992, Ministry for the Environment, Appendix B.
28 See infra. Again, the discussion in these sections and the differences in views between the instruments analyzed suggests that the constitutional relationship between local government and Maori in terms of the Treaty of Waitangi is not clear nor adequately discussed in the literature. There is, perhaps, an opportunity here for further scholarship concerning this constitutional relationship.
29 Some of the instruments further elaborate upon this principle. The instrument signed by the Auckland Regional Council, for example, provides that:
“The parties understand the powers and functions of the Council to be delegated authority from the Crown (Kawanatanga) by statute and, therefore, such expressions of Kawanatanga are limited by statute.”
30 In addition to those principles that are accepted nationally, this instrument also “recognizes the Ngai Tahu interpretation of the Treaty of Waitangi provided by them in 1857”, which states that:
“This is the command that they love laid upon these Governors,
That the law be made one,
That the commandments be made on,
That the Nation be made one,
That the white skin be made one,
and that it be made just equal with the dark skin,
and that all might enjoy a peaceable life”.
See also the instrument signed of Opotiki District Council, which provides that: “It is intended that the parties develop their own principles to assist in building an effective working relationship.”
31 The instrument developed by Rangitikei District Council states those purposes to include:
(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) Recognition of communities of interest;
(f) The effective participation of local persons in Local Government.
32 See, for example, the instrument signed by Auckland City Council.
33 Section 27 of the Transit New Zealand Act 1989 states that:
Maori interests to be considered - No project which affects or is likely to affect Maori land or Maori historical, cultural, or spiritual interests shall be included in any district land transport programme unless the local authority responsible for the project has consulted every iwi or hapu that in the opinion of the local authority will or may be affected by the project, and the local authority is satisfied after such consultation that the project should proceed.
34 See, for example, the Treaty of Waitangi Act 1975, the Maori Language Act 1987, and the Burial and Cremation Act 1964.
35 Of particular importance for Manukau City Council will be several iwi planning documents, including: Ngaa Tikanga o Ngaati te Ata - Tribal Policy Statement and the Waikato Iwi Resource Management Plan.
36 It is worth noting here the provision made in the instrument signed by the Kapiti Coast District Council which states that: “The Tangata Whenua of this District are independent tribes which each maintain their own mana and tikanga. For any issue requiring consultation the parties will agree whether the consultation should take place collectively or separately.”
37 See, for an example of a very detailed memorandum concerning the involvement of tangata whenua in Council meetings, the instrument signed by the Hutt City Council.
38 The instrument of Tauranga District Council further specifies which applications are to be referred. These include applications involving: creation of two or more additional rural lots; creation of 5 or more additional urban lots; all applications involving or adjoining Maori land; all applications involving Crown or Council land; and any application likely to affect a resource known to be significant to tangata whenua.
39 The instrument signed by the Hawkes Bay Regional Council specifically outlines the process to be followed in relation to resource consents identified as taonga by tangata whenua.
40 The instrument signed by Wellington Regional Council, for example, provides that: “The Wellington City Council requires advice and support from Maori for civic occasions. Te Runanga O Toa Rangatira Inc. will consult with the Wellington Tenths Trust and Te Runanga o Taranaki Whanui ki te Upoko o te Ika a Maui to determine who shall establish the kawa and preside over the powhiri and other civic events for which we would value tangata whenua involvement.”
41 See the draft Charter of Understanding of Christchurch City Council.
42 The draft Charter of Understanding of the Christchurch City Council, for example, specifically provides for formal consultation consisting of “a meeting between the Mayor and City Councillors and the Upoko of Ngai Tuahuriri Runanga and its members at least once every three years, (the term of office for Council). As a minimum such a meeting, at a venue of the parties choosing e.g. a marae,, should be held shortly after the election of a new Council. It is expected that such meetings will address strategic issues and policy matters, issues of relevance to the overall well-being of Maori and all citizens of Christchurch, rather than immediate or day to day issues.”
43 See for example, Northland Regional Council, Consultation - The Challenge (Northland Regional Council, Whangarei: 1993).
44 It is worth noting a provision in the instrument signed by Hamilton City Council which states that:
“Council also acknowledges the need to empower [tangata whenua] to not only meet the specific terms of this contract but develop the capacity to be an active and equal partner in managing the natural resources of its district. In this respect both parties commit to establishing a fair and equitable financial resourcing system which recognizes the need for Council to maintain financial and legal accountability yet provide for the agreement to be met”.
45 See also the instrument signed by Kapiti Coast District Council, which provides that:
“The parties acknowledge that:
(i) the Council is bound by legislation which prescribes its powers and functions, and by common law principles relating to the exercise of its statutory powers and functions.
(ii) the contents of this memorandum shall not require the Council to act otherwise than in accordance with its statutory powers and the common law principles affecting those powers.”
See also the instrument developed by Rangitikei District Council.
46 The instrument signed by Hamilton City Council provides that “Part 1 and 2 of this agreement commences on 1st ........... 199... and continues until 30th ............. 199... The agreement will continue to be renewed on an annual basis subject to the approval and review of both parties.”
47 See also the instrument signed by Hamilton City Council, where tangata whenua and Council may also institute environmental initiatives.
48 See also the instrument signed by Rodney District Council which provides that:
Indemnity - at no time will the Council bear responsibility or liability in respect of any unlawful action arising out of the conduct of Te Hao or its agents. Similarly, at no time will Te Hao bear responsibility or liability for any unlawful action by the Council in respect of the ancestral lands, water, sites, waahi tapu and other Taonga of Ngati Whatua.”
49 See also the instrument signed by Hamilton City Council, where provision is made for educational activities to be offered to staff, Council and the general public on matters relating to resource management and tangata whenua. The instrument signed by Kapiti Coast District Council also provides that: “The Council accepts the need to understand the historical perspective of the Tangata Whenua and, similarly, the Tangata Whenua will appreciate the perspective of the other Treaty Partner. To achieve partnership both parties may need to make adjustments. Continuing consultation and education is seen as the best way to do this.”
Grant Hewison
