Cross-legislation

Wai 898: Te Mana Whatu Ahuru – Report on Te Rohe Pōtae Claims Part IV

“But all the different arrangements and opportunities are ad-hoc and the various legislation that provide for these opportunities lack coherence. In some cases, such as section 33 of the Resource Management Act, while offering Māori the means to exercise their authority to manage natural resources, local authorities have discretion whether to agree or not ; they are not obliged to transfer any power to iwi.”

“We recognise that some local authorities in the district have taken steps to improve Māori representation and participation in local government decisions, but these are largely dependent on the ‘good-will’ of the local authority and local community. In our view, having to rely on the discretion of the local authority and good-will of the community is another breach of the principle of partnership. We find, in particular, that sections 19ZA to 19ZG of the Local Electoral Act 2001, which allows for polls of electors to decide on whether Māori wards or Māori constituencies can be established, are inconsistent with the principles of the Treaty and breach Te Rohe Pōtae Māori tino rangatiratanga.”

“The Crown is obliged to ensure that local authorities reflect Treaty principles. In failing to do so, the Crown is acting inconsistently with the principles of the Treaty of Waitangi, namely the principles of partnership, rangatiratanga, and equity and has breached its duty of active protection of Te Rohe Pōtae tino rangatiratanga.”

“The lack of coherence indicates that specific legislation is needed to fully recognise Te Rohe Pōtae Māori tino rangatiratanga. The Crown should negotiate with Te Rohe Pōtae Māori, or their mandated representatives, to put in place legislation that recognises and gives effect to their tino rangatiratanga in local government.”

Wai 863: Wairarapa ki Tararua Report

“We find that, while the Local Government Act 2002 exposes iwi to the policies and actions of local government, it does not hold councils to account if they fail to provide opportunities for Māori to participate in decision-making or do not actively protect environmental taonga (treasured property). In other words, the Crown has delegated responsibility to local councils but has not delegated an equivalent level of accountability.”

“In the public works chapter (ch 8), we have already discussed the Crown’s delegation of powers to local authorities. There we found that that the Crown may not avoid its Treaty obligations by unilaterally deciding that Crown functions will be carried out by others.”

“Delegation of Crown functions is of course in accordance with the Treaty if the Crown’s Treaty obligations go with the delegation. However, we have seen in all spheres of local government activity that the Treaty provisions in the relevant legislation are not sufficiently prescriptive to oblige local bodies to conduct themselves in a manner that is consistently Treaty-compliant. In this, the Crown fails in its duty of active protection.”

“Thus we consider that both the Local Government Act and the Resource Management Act require more compelling Treaty provisions. Also needed are regular audits, and sanctions for non-compliance.”

Wai 2200: Horowhenua- The Muaūpoko Priority Report

“We consider that, as the Crown was and remains responsible for the legislative regime under which local government operates, it is time for it to recognise that the multi-layered management regime that exists under the RMA 1991 and the Local Government Act 2002 and the role played by Muaūpoko on the Horowhenua Lake Domain Board are not sufficient in Treaty terms. The present regime does not ensure that Muaūpoko rangatiratanga and kaitiakitanga in terms of Lake Horowhenua and the Hōkio Stream are sufficiently provided for.”

Wai 898: Te Mana Whatu Ahuru – Report on Te Rohe Pōtae Claims Part IV

“In this chapter we have demonstrated how the Crown in actively pursuing its policy priorities with respect to the environment in conjunction with local or regional authorities, acted in a manner inconsistent with the principles of the Treaty of Waitangi. The actions, policies and legislation it was and is responsible for causing prejudice to the claimants have stemmed from…” “The continued subjection of the claimants to the decision making of regional and local authorities who are not required by legislation to give effect to the principles of the Treaty of Waitangi in the administration of their powers and functions under the legislation and in planning and consenting procedures.” (p 500)

“But all the different arrangements and opportunities are ad-hoc and the various legislation that provide for these opportunities lack coherence. In some cases, such as section 33 of the Resource Management Act, while offering Māori the means to exercise their authority to manage natural resources, local authorities have discretion whether to agree or not ; they are not obliged to transfer any power to iwi.”

“We recognise that some local authorities in the district have taken steps to improve Māori representation and participation in local government decisions, but these are largely dependent on the ‘good-will’ of the local authority and local community. In our view, having to rely on the discretion of the local authority and good-will of the community is another breach of the principle of partnership. We find, in particular, that sections 19ZA to 19ZG of the Local Electoral Act 2001, which allows for polls of electors to decide on whether Māori wards or Māori constituencies can be established, are inconsistent with the principles of the Treaty and breach Te Rohe Pōtae Māori tino rangatiratanga.”

“The Crown is obliged to ensure that local authorities reflect Treaty principles. In failing to do so, the Crown is acting inconsistently with the principles of the Treaty of Waitangi, namely the principles of partnership, rangatiratanga, and equity and has breached its duty of active protection of Te Rohe Pōtae tino rangatiratanga.”

“The lack of coherence indicates that specific legislation is needed to fully recognise Te Rohe Pōtae Māori tino rangatiratanga. The Crown should negotiate with Te Rohe Pōtae Māori, or their mandated representatives, to put in place legislation that recognises and gives effect to their tino rangatiratanga in local government.” (p 139)

Wai 796: The Report on the Management of the Petroleum Resource 

“In our view, while the Local Government Act 2002 encourages such processes, it has proven inadequate to ensure that local authorities discharge the Crown’s Treaty obligations. And, while central government entities are more familiar with the Crown’s obligations, they too can lack the capacity and the will to incorporate Māori knowledge and values systematically in their decision-making processes. Māori are the clear losers from this state of affairs, in a subject area of vital importance to their culture.”

Wai 863: Wairarapa ki Tararua Report

“While we recognise that steps have been taken by some local authorities in some places to improve Māori representation and participation in local government decisions, we emphasise that this is not required in the legislation – and nor are there sanctions for poor practice. To ensure that good working relationships happen all the time, rather than arbitrarily or opportunistically, we call for clear lines of accountability that are supported by legislation that enables, promotes, and (at least for key decisions) requires full involvement of tangata whenua.”

“Recommendations: The Local Government Act 2002, Resource Management Act 1991, Historic Places Act 1993 and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and other relevant legislation be amended to provide Māori the level of input that recognises their status as a Treaty partner.”