Part 5: Advice and support for public organisations
5.1
Over time, including before He Korowai Whakamana was introduced, public organisations have had access to a range of advice and guidance about providing redress (and resolving any associated issues). We wanted to assess how well this advice and guidance supported public organisations to provide redress as intended.
5.2
We expected that public organisations with settlement responsibilities would have support available. We expected this support to include both general advice and guidance, as well as more specific interventions where needed.
5.3
Public organisations that had accessed Te Arawhiti's support told us that it generally helped them to meet their settlement commitments. However, we found that some guidance, including about rights of first refusal, needs to be updated or improved and that the resolution pathway needs to be clarified.
5.4
In addition, support has largely focused on core Crown agencies, and we saw only isolated examples of Te Arawhiti supporting non-core Crown agencies. He Korowai Whakamana formally excludes these agencies, which are responsible for 20% of all commitments. In our view, this creates a risk to meeting those commitments and to settlements' overall success.
There are gaps in the guidance and support available
5.5
When requested, Te Arawhiti was able to provide advice and support to core Crown agencies about how to meet specific settlement commitments. We saw some instances where it provided advice to other public organisations when they were developing policies or processes related to settlements.
5.6
In most instances, Te Arawhiti provided targeted advice and support when a core Crown agency had issues with meeting its commitments. For example, Te Arawhiti worked with the Department of Conservation to resolve an issue with the vesting and gift-back of a culturally significant site and to support its relationship with the relevant post-settlement governance entity.
5.7
Overall, public organisations that had accessed Te Arawhiti's advice and support said that it helped them with their settlement commitments. We heard about Te Arawhiti:
- meeting regularly with core Crown agencies;
- assisting with specific issues with, or questions about, commitments; and
- assisting public organisations to develop their own policies and approaches to commitments.
5.8
However, there are some critical gaps in the support that is available for public organisations that affect their ability to fulfil settlements. These are:
- support to understand and comply with rights of first refusal;
- clarifying the Public Service Commissioner's role in the resolution pathway;
- routine support for non-core Crown agencies; and
- building senior public servants' capability.
Support for right of first refusal redress needs to improve
5.9
Rights of first refusal are a type of redress that gives post-settlement governance entities a long-term right to be given the first opportunity to buy land a core Crown agency or Crown entity decides to dispose of.
5.10
In 2016, the then Post Settlement Commitments Unit set up a joint working group to develop policy and guidance to help public organisations that own land subject to rights of first refusal understand their obligations.49 Officials had identified that these organisations needed more accessible information to improve their understanding of these rights.50
5.11
This work resulted in changes to the Cabinet Manual and Cabinet Guide, and the development of right of first refusal guides. Right of first refusal guides started to be published at the end of 2020, and Te Arawhiti and Land Information New Zealand collaborated to publish and maintain them.
5.12
The guides set out key aspects of rights of first refusal for each settlement, including:
- hyperlinks to, and a summary of, contractual and legal requirements for actioning a right of first refusal;
- whether properties subject to a right of first refusal must have a memorial added to relevant titles (see paragraphs 5.17-5.19); and
- key contacts at the post-settlement governance entity, Land Information New Zealand, and Te Arawhiti.51
5.13
Sixty-four settlements need guides. Currently, there are guides for 54 of them. Of the 10 outstanding guides, eight are on hold because of wider settlement issues.
5.14
Land Information New Zealand told us that it is working on the other two guides, which are for the Ngāi Tahu and Waikato Tainui settlements. It recently introduced a process to begin drafting guides before a settlement Act is passed, to ensure it can publish the guide as soon as possible after enactment.
5.15
We found that the guidance and processes to help core Crown agencies and Crown entities give effect to rights of first refusal are still not consistently complied with, despite clear requirements.
5.16
The implications of not complying with right of first refusal provisions can be significant. For example, in 2022, Te Arawhiti and Land Information New Zealand found that three properties subject to future rights of first refusal under one settlement had been sold on the open market.
5.17
Memorials are entries on the certificate of land title that provide relevant information about the property. This includes, in the case of settlement redress, any rights of first refusal.
5.18
These memorials help core Crown agencies and Crown entities understand where rights of first refusal apply. They cannot be removed from the title until the public organisation has proved that it has executed the requirements of the relevant right of first refusal.
5.19
Typically, Land Information New Zealand is required to place memorials on all current titles as at the settlement date. After the settlement date, the land-owner is responsible for informing Land Information New Zealand that an updated or newly created title requires a right of first refusal memorial.
5.20
Land Information New Zealand is aware that there are mistakes with memorials. Some land titles that should have memorials do not. In some instances, memorials have been placed that refer to the wrong post-settlement governance entity and/or the wrong settlement. In other instances, they have been placed on land titles that are not subject to a right of first refusal.
5.21
Land Information New Zealand and Te Arawhiti's March 2022 joint quarterly report to their Ministers discussed issues with memorials. The report acknowledged that the organisations had previously taken an "ad hoc" approach to fixing these issues. It said that they would now consider "systematic processes to address any risks".
5.22
Land Information New Zealand and Te Arawhiti worked together to try to resolve these issues. In May 2023, Land Information New Zealand reviewed memorials for 10 of 21 existing settlements that Te Arawhiti highlighted as high or medium risk. As a result, it added 195 additional right of first refusal memorials to land titles.
5.23
Land Information New Zealand told us that it completed its review of the memorials for the remaining 11 settlements in 2023.
5.24
It also completed spot checks in two regions with a high concentration of settlements. This revealed further instances where public organisations with land subject to rights of first refusal had created new titles that needed memorials, but they had not informed Land Information New Zealand. This work resulted in Land Information New Zealand creating an additional 872 new titles with right of first refusal memorials.
5.25
It is critical that public organisations understand whether land is subject to right of first refusal provisions and notify Land Information New Zealand when they create new titles – for example, after they subdivide land. Not doing so compromises the effectiveness of the right of first refusal guides and increases the risk that public organisations will not comply with right of first refusal provisions in future land transfers or sales.
5.26
In our view, Land Information New Zealand must urgently complete the outstanding guides, and implement a system to ensure it can place future memorials accurately. We strongly encourage it to take a proactive approach to ensuring that all public organisations understand their obligations under rights of first refusal.
| Recommendation 4 |
|---|
| We recommend that Land Information New Zealand works to ensure that there is a system in place so that right of first refusal memorials are correctly placed on land titles. |
The Public Service Commissioner's role in the resolution pathway needs clarifying
5.27
He Korowai Whakamana set up a pathway for resolving settlement issues (see paragraphs 2.40-2.43). The pathway applies to core Crown agencies' commitments.
5.28
A settlement issue arises when a public organisation has not met or cannot meet a commitment as intended, such as within the specified time frame.
5.29
The pathway has been effective at resolving issues, including without the need for Ministerial or Cabinet decisions. We saw an example where Te Arawhiti was able to assist the Department of Conservation after an issue with cultural redress had affected its relationship with a post-settlement governance entity. As a result, Ministers or Cabinet did not need to intervene.
5.30
The resolution pathway names the Public Service Commissioner as needing to be notified at the "Re-establish" step of the process "to give oversight of post-settlement delivery issues and the health of the Māori Crown relationship".
5.31
This is appropriate given the Commissioner's leadership role for the public service. This role includes overseeing the public service's performance and integrity. It also involves developing and maintaining (along with chief executives) the public service's capability to engage with Māori and to understand Māori perspectives.52
5.32
Te Arawhiti said that it envisioned escalating something to the Commissioner if it was unable to get traction with a core Crown agency. In those instances, the Commissioner's powers under the Public Service Act 2020 – for example, to manage the performance of chief executives – could help resolve significant settlement issues.
5.33
However, when we carried out our audit, Te Arawhiti had not yet formally escalated any issue to the Commissioner. Instead, it used other steps in the resolution pathway, such as notifying Ministers or Cabinet. Te Arawhiti told us that this was because it had still been discussing the Commissioner's role with the Public Service Commission.
5.34
We consider that this is a significant gap in He Korowai Whakamana. The opportunity for the Commissioner to use their authority and influence to resolve issues could be a timelier and more appropriate alternative to escalations to Ministers or Cabinet.
5.35
The Public Service Commission told us that it would work with Te Puni Kōkiri to clarify the Commissioner's role.
Crown entities, local authorities, and other non-core Crown agencies have little support
5.36
As discussed in paragraphs 3.7-3.16, guidance is available to help core Crown agencies understand settlements and the redress associated with them.
5.37
Although we saw examples of Te Arawhiti advising and supporting non-core Crown agencies on particular issues, we saw no established processes for Crown entities, local authorities, and other non-core Crown agencies to access advice and support for meeting settlement commitments.
5.38
This is consistent with the scope of He Korowai Whakamana. It formally excludes non-core Crown agency commitments from its oversight, monitoring, and support arrangements. However, Te Arawhiti was aware that there were active settlement issues involving non-core Crown agencies.
5.39
For example, we heard that the relationship between Hawke's Bay Regional Council and Te Uru Taumatua has been tense for a long time. However, when we carried out our audit, this issue had not been resolved using the pathway even though Te Arawhiti knew about it and it met the criteria for a significant settlement issue. We were told this was because Te Arawhiti lacked capacity and He Korowai Whakamana does not apply to councils.
5.40
In another example, we received evidence about an issue with commercial redress involving a Crown entity that has remained unresolved for several years. The issue is at the centre of a significant grievance for the relevant post-settlement governance entity.
5.41
Te Arawhiti briefed its Minister about the issue in 2022. The briefing highlighted that a barrier to resolving the matter was a lack of mandate to direct Crown entities or otherwise get involved in operational matters.
5.42
Staff advised that they would stay in contact with the Crown entity about the matter but that the Minister had "few levers to directly influence the outcome of these discussions" if they do not resolve in a manner suitable to the post-settlement governance entity.
5.43
In our view, these examples reinforce the need for a clear resolution pathway for non-core Crown agencies.
5.44
Crown entity and local government staff we spoke with were concerned that they did not have the same level of support as core Crown agencies. Staff from Greater Wellington Regional Council emphasised the need for active system stewardship.
5.45
This type of leadership could support them to keep track of the settlements that they contribute to and advise them on what timing and implementation approaches are best suited to each settlement's circumstances.
5.46
We agree. We saw evidence of Crown entities and local government having difficulties meeting commitments. The performance of these agencies matters to post-settlement governance entities, who told us that they do not distinguish between "core Crown" and "non-core Crown" public organisations.
5.47
A lack of support for non-core Crown agencies creates risks for the fulfilment of their commitments, the durability of their relationships with post-settlement governance entities, and the Māori–Crown relationship overall.
5.48
We discuss the limitations of He Korowai Whakamana in more detail in Part 6.
Senior public servants need more support to build capability
5.49
We heard from senior public servants at core Crown agencies, including chief executives, that meeting settlement commitments and managing relationships with post-settlement governance entities was a much more significant aspect of their roles than they had anticipated.
5.50
We heard that investing enough time and attention to improving relationships with post-settlement governance entities is especially challenging, in what are already demanding roles.
5.51
We also heard that senior public servants would like more support to assist them to do this well. For example, senior public servants at two of the organisations we spoke with told us that maintaining productive relationships with post-settlement governance entities needed considerable sensitivity and resilience. This was especially so given the public sector's historical actions and omissions – and those of their organisations in particular.
5.52
One senior public servant told us that they had sought opportunities to upskill and develop to help them manage these responsibilities. This included seeking connections with experienced chief executives and relationships with their counterparts at post-settlement governance entities.
5.53
Brokering, leading, and maintaining enduring relationships with post-settlement governance entities and the people they represent – on behalf of the public organisation, the wider public sector, and the government – is a complex role.
5.54
In our view, senior public servants need to have the right knowledge, skills, and experience to manage these obligations effectively. In our view, the Public Service Commission should support chief executives with ongoing capability development, including in a way that prepares them to develop the capability of the senior public servants who report to them. This is particularly important for public organisations with large numbers of, or complex, settlement commitments.
5.55
The Public Service Act 2020 requires the Public Service Commissioner to develop and implement a strategy for developing senior leadership and management capability in the public service.53
5.56
Public service chief executives also now have legal obligations under the Public Service Act to develop and maintain the capability of the public service to engage with Māori and Māori perspectives. In our view, chief executives will need more support to meet these obligations.
5.57
The Public Service Commission and the governing bodies of Crown entities, local authorities, and other non-core Crown agencies (as the entities that appoint chief executives) should also carefully consider the knowledge, skills, experience, and ongoing development and support that people in these roles need.
5.58
Although complex settlements are not new, public sector leaders need to develop and maintain adequate capability to understand and fulfil them.
| Recommendation 5 |
|---|
| We recommend that the Public Service Commission and the governing bodies of Crown entities, local authorities, and other non-core Crown agencies strengthen ongoing development for chief executives so that they can lead their organisations to effectively meet settlement commitments. |
49: The working group included the Post Settlement Commitments Unit, Land Information New Zealand, the Treasury, and the Office of Treaty Settlements.
50: Rights of first refusal can apply to public land, including land that core Crown agencies and Crown entities own. Deeds of settlement specify the terms and conditions of rights of first refusal, which can be complex. For example, sometimes there are multiple rights of first refusal for a specific property under two or more settlements, called a "future right of first refusal". Sometimes, a settlement includes what are called "area rights of first refusal". These apply rights of first refusal to all core Crown agency and Crown entity properties within a geographic area rather than to a list of specific properties. The post-settlement governance entity is given a set period to respond to a right of first refusal once it has been offered – usually 20 working days (see Toitū Te Whenua, "Right of First Refusal (RFR)", at linz.govt.nz).
51: When we wrote this report, the guides had not yet been updated to include contact information for Te Puni Kōkiri.
52: Sections 14 and 43 of the Public Service Act 2020.
53: The Public Service Act 2020 defines the public service as all departments, departmental agencies, interdepartmental executive boards, and interdepartmental ventures. This excludes the New Zealand Defence Force and the New Zealand Police, which He Korowai Whakamana defines as "core Crown agencies".