Part 5: Māori participation and representation, and giving effect to the Treaty of Waitangi

Auckland Council: Transition and emerging challenges.

The formal structure and the intentions of the Auckland reforms

In the 2006 Census, more than 130,000 of Auckland's population of 1.3 million people identified as Māori. Mana whenua (people with tribal links within Auckland) make up 14.5% of Auckland's total Māori population. Nineteen mana whenua traditional tribal areas overlay the Council's region. Mataawaka (Māori with tribal links outside Auckland) make up 63.4 % of Auckland's total Māori population and 22% do not identify with any iwi.14

Local authorities have obligations to consider the needs and interests of Māori within their district in their planning, decision-making, and service delivery as part of their obligation to the residents and ratepayers of their districts. Local authorities also have Treaty of Waitangi obligations under several pieces of legislation (primarily, the Local Government Act 2002 and the Resource Management Act 1991) and through the process of Treaty of Waitangi settlements. There is also an expectation that Māori have fair and appropriate opportunities for electoral representation in local authorities.

After much debate about how the Council could be structured to enable appropriate representation for Māori on the Council's governing body, the Independent Māori Statutory Board (IMSB) was established through the enactment of the Local Government (Auckland Council) Amendment Act 2010. The IMSB is without precedent in central or local government.

Established by the Local Government (Auckland Council) Amendment Act 2010 as a Public Finance Act 1989 Schedule 4 entity, the IMSB is independent of, but funded by, the Council. The IMSB's purpose is to help the Council to take the views of Māori into account in its decision-making, so as to be responsive and effective for Māori.

It has a statutory role to provide leadership and direction to the Council to make decisions, perform functions, and exercise powers by:

  • promoting the cultural, economic, environmental, and social issues that are significant to Māori in Auckland; and
  • ensuring that the Council complies with statutory provisions that refer to the Treaty of Waitangi.

The IMSB must:

  • develop and maintain a prioritised list of issues that are significant to Māori;
  • give advice to the Council about issues that affect Māori in Auckland; and
  • work with the Council to create suitable documents and processes to help the Council meet its statutory obligations to Māori in Auckland.

The board members of the IMSB were appointed by an iwi selection body. The Minister of Māori Affairs invited each mana whenua group in Auckland to select a person to be its mandated representative to the iwi selection body. The selection body then prepared and carried out the processes for appointing the members of the IMSB. The board membership comprises seven mana whenua group representatives and two mataawaka representatives.

What we heard – getting runs on the board with a unique model

During the two years since the IMSB was established and its board members appointed, it has:

  • appointed its secretariat and secured representation to most Council committees;
  • commissioned and reported the results of a Treaty of Waitangi audit (carried out on its behalf by PricewaterhouseCoopers (PwC)), which have been accepted by the Council as a baseline for improvement; and
  • created a view of Māori well-being and its first list of issues of significance for Māori. The IMSB also assessed the Council's LTP against that list, identifying suggested actions, measures, and targets.

In 2011/12, the IMSB received direct funding of $984,200 from the Council. In our discussions with the IMSB, we were told that some would prefer its resourcing to come from general taxation rather than the Council's rating sources. We were told that this would reduce resentment from those who perceive the IMSB as a cost to the Council and Auckland ratepayers.

The Council also provides support services such as finance and IT, and meets the IMSB's accommodation costs. The Council also part-funded and provided staff support to the IMSB's Treaty of Waitangi audit and programme to identify a list of issues of significance to Māori.

The Treaty of Waitangi audit

The Treaty of Waitangi audit involved preparing a legal framework setting out statutory Treaty provisions and obligations to Māori relevant to the Council. This was completed by Atkins Holm Majurey Law (AHM Law). PwC then developed and carried out the audit of expected good practice against those statutory provisions and obligations. The audit included input from Māori and interviews with Council staff (including local board and CCO staff).

The audit found that the core building blocks of the Council's processes to ensure that it complies with the Treaty of Waitangi are significantly weak and are almost certain to compromise Māori legislative rights. It recommended that these areas be addressed as a matter of urgency. They included the Council's:

  • knowledge of its statutory obligations to Māori and of statutory provisions relating to the Treaty of Waitangi;
  • policies to set established principles, rules, and guidelines; and
  • consultation and engagement with Māori.

The audit also identified serious weaknesses likely to compromise Māori legislative rights in other areas such as processes, systems and data, decision-making, training and awareness, communication, and monitoring.

The IMSB and the Council have worked through the audit's recommendations. The Council's Chief Executive's response is included in the report. In this response, the Chief Executive says that the audit provides a basis for the IMSB to assist the Council to ensure that it acts in accordance with statutory provisions referring to the Treaty of Waitangi, and for the Council to understand its compliance and to develop a work programme. The IMSB expects to work with the Council to:

  • take a transformational approach to addressing the audit's findings throughout the organisation, with the leadership of the Council's Chief Executive and Executive Leadership Team;
  • set priorities for policies and processes that relate to the Council's statutory obligations to Māori, and set time frames for the development and implementation of these policies by May 2013;
  • agree on the scope, time frame, actions, and resources to implement the agreed actions to address significant and high-risk ratings (this will form the work programme between the IMSB and the Council); and
  • regularly monitor and account for progress against the actions and recommendations at governance and management levels.

List of issues of significance for Māori

The first list of issues of significance for Māori created by the IMSB is grouped under Treaty of Waitangi principles and is wide ranging, covering issues in central and local government. It includes issues with engagement/consultation/inclusion, access to justice, kaitiakitanga, waahi tapu protection, Māori representation, CCOs, resource consents, infrastructure process/development, regional planning and development, community development, customary rights, health, urban Māori, papakainga housing authorities, marae development, infrastructure, rates, affordable housing, education, economic development, tourism, and Treaty settlements.

There are five common elements to the action plans accompanying the issues of significance:

  • All Council policies, reviews, and committee reports contain a Māori impact statement.
  • The IMSB will monitor the Council's ongoing connectivity with central government, including the IMSB and agencies developing engagement and protocols to ensure a holistic approach to the planning, development, and delivery of outcomes across all issues.
  • The IMSB will liaise with the Council's Māori Strategy and Relationships team to help prepare policies that ensure the best outcomes for Māori. The Māori Strategy and Relationships team helps the Council to meet its representation and Treaty of Waitangi obligations. The team is responsible for all Māori-specific policy, planning, research and evaluation, stakeholder engagement, relationship management, bicultural development and training, and Māori protocol and process information and activities.
  • The IMSB will advocate to the Council to create and promote policies that are accessible and that clearly explain concepts. Timely and accurate answers which make sense to the end-user must be provided.
  • The IMSB will advocate to the Council to provide appropriate and reasonable resourcing to ensure Māori engagement in all the Council's activities.

At the time of writing our report, the Council and the IMSB were discussing the IMSB's list of significant issues and priorities to agree the actions, measures, and targets that could be carried out within the Council's LTP during the next three years.

The IMSB is challenging the Council to improve its decision-making to be responsive and effective for Māori. The IMSB is also thinking ahead to future work. For example, it has indicated that it will look to assess the efficiencies for Māori gained through regional contracting.

As with the other major areas of change within the Auckland reforms, the people we spoke to described the relationship between the IMSB and the Council as generally working, with everyone trying their best.

Representation on Council committees

Under section 85 of the Local Government (Auckland Council) Act 2009, the IMSB must appoint a maximum of two persons to sit as members on each of the Council's committees that deal with the management and stewardship of natural and physical resources. At first, the IMSB secured representation on 11 standing committees. The IMSB's legal advice suggests that its entitlement to appoint representatives is more extensive than many probably anticipated. It now has nominated members on 16 Council committees and forums. Nominated members also sit on a range of hearings panels and working parties.

Committees and forums on which the IMSB's nominated members serve include:

  • Hearings Committee;
  • Accountability and Performance Committee;
  • Auckland Plan Committee;
  • Regional Development and Operations Committee;
  • Parks, Recreation and Heritage Forum;
  • Environmental and Sustainability Forum;
  • Social and Community Development Forum;
  • Economic Forum;
  • Regulatory and Bylaws Committee;
  • Strategy and Finance Committee;
  • Transport Committee;
  • CCO Strategy Review Sub-committee;
  • Planning and Urban Design Forum;
  • Culture, Arts and Events Forum;
  • Community Safety Forum; and
  • Civil Defence and Emergency Management Committee.

At this stage, and at the request of the Council, the IMSB has nominated only IMSB members to serve on Council committees. The Council's request was motivated by its desire to establish constructive understandings and working relationships between the Council and the IMSB from the outset of their operations. However, the IMSB is not restricted to selecting solely from among board members.

The effect of IMSB nominated members was generally acknowledged. We were told that the IMSB's nominated members are gaining increasing acceptance from their fellow Committee members. The IMSB noted that its nominees are able to be particularly influential as unaligned voters on committees that have well-established split voting patterns.

In contrast to its extensive involvement in the committees of the governing body, there has been no significant liaison between the IMSB and the local boards.

The IMSB raised the concern that many Māori hold the view that they have lost the relationship they had with the former councils and are now confused about who to see for advice and action. An understanding between the IMSB and local boards similar to that between the IMSB and the governing body may help local boards to provide community input on issues of interest to Māori.

Working with Council staff and CCOs to support decision-making

The IMSB told us of weaknesses in how the Council identifies, and seeks input on, issues of interest to Māori. In response to these weaknesses, the IMSB has advised that the Council and CCOs need to improve staff understanding of the procedural steps that should be carried out when preparing advice to support decision-making by the governing body.

For example, staff preparing advice to the governing body could address common questions such as:

  • how Māori have been consulted;
  • how aligned the advice is with the Treaty of Waitangi;
  • whether advice has been sought from the Māori Strategy and Relationships team; and
  • how the feedback from consultation, and the advice of the Māori Strategy and Relationships team, has been used in the advice.

The IMSB is hoping to provide the Māori Strategy and Relationships team with support, so the team can help the Council to improve the common weaknesses. The IMSB would like to see the Māori Strategy and Relationships team better integrated into the Council to enable it to achieve this.

Council and CCO staff told us of a genuine desire to work with the IMSB. However, some people we spoke to said that it was hard to get traction on what and how to improve. Some Council staff expressed confusion about how the role of IMSB was intended to be carried out day-to-day. Council staff also said that the IMSB could more constructively contribute by giving more specific advice about what can or should be done.

The IMSB was clear that this expectation was a misunderstanding of its role and purpose. Unlike local boards, the IMSB has not been established as a representative or facilitator of consultation with Māori in Auckland. Rather, the IMSB's purpose is to help the Council to take the views of Māori into account in its decision-making so as to be responsive and effective for Māori. The IMSB describes its role as monitoring and auditing.

The IMSB sees itself as a vanguard model that could be usefully transported to other local authorities.

Our observations – working with goodwill and building good practice

Since it was established, the IMSB has been through a significant transition and created a substantial body of work. The board and its secretariat, as a new form of statutory representation, are working with clarity of focus on what they want to achieve and how they think they can best contribute to the Council.

In our experience of working with public entities, improvements such as those sought by the IMSB are the most difficult to successfully embed and maintain. Such improvements rely on people getting past compliance and checklists into real understanding. The desire that Council staff express for understanding how to interact with Māori shows commitment to responding to the well-being needs and interests of Māori and to the Treaty of Waitangi obligations.

None of this is simple – local authorities are not party to the Treaty of Waitangi and the legislative Treaty obligations on councils exist to address the Crown's obligations. Many of these obligations are decision-making and procedural requirements, such as for consultation to ensure that heritage and taonga are recognised and maintained. Inevitably, there will be debate about how to effectively engage with communities, and bring the result of engagement to decision-making, so that these obligations can be discharged.

It is the Council's responsibility to engage with Māori as part of the public of Auckland, including in ways adapted to the needs of the many varied communities of interest comprising Auckland. This responsibility is one shared by all local authorities to their communities.

The IMSB brings significant insight into, and connection with, Māori communities through its work with the Council. As well as its current monitoring and advisory activities, it could develop advisory support, provide tools and guidance, recognise where the Council has done well, and identify good practice examples.

It is important that all involved maintain their best intentions and apply goodwill when interpreting the actions of others. Good practice needs to be adopted to achieve the appropriate consideration of the needs and interests of Māori in decision-making in effective and efficient ways.

14: See

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