Katene Rahui: Local Government (Auckland Law Reform) Bill — In Committee 
Katene Rahui: Local Government (Auckland Law Reform) Bill — In Committee 
[Volume:663;Page:11458] 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 The Committee will be aware that the Maori Party has serious concerns about the Local Government (Auckland Law Reform) Bill particularly the way that mana whenua have been cut out of any decision making. I thank Mr Hawkins for bringing the Committee’s attention to our minority report. I also thank him for the concern he has shown for the way that our member has not been able to attend every hearing of the select committee. I think his concern might be because he does not realise that that member is as are all members of the Maori Party in constant contact with mana whenua and is able to find out directly from them what their concerns are with this bill and with other areas. Perhaps it is because that party did not do that itself when it was in Government. 
We have serious concern about this bill and we have a solution. I want to talk about our Supplementary Order Paper to insert a new clause that would give effect to the principles of the Treaty. I remind the Committee that the confidence and supply agreement we entered into with National includes in its introductory words: “Both the National Party and the Maori Party will act in accordance with Te Tiriti o Waitangi the Treaty of Waitangi.” Therefore this Supplementary Order Paper is in keeping with the efforts of the Maori Party to recognise the Treaty of Waitangi and specifically set out the ongoing decisions on which the Crown has an obligation to consult. The purpose of our Supplementary Order Paper is to amend this bill to ensure that we make great progress in honouring the Treaty. The Supplementary Order Paper is designed to give coherence to the Government’s commitment to the partnership between Maori and the Crown to give legal effect to the commitment to the principles of the Treaty to maintain Maori confidence in the Auckland area and to accelerate progress towards social cultural and economic development and well-being between Maori and non-Maori. 
We put forward this amendment as we firmly believe that a Treaty of Waitangi clause would provide a legitimate and substantive framework upon which decisions regarding Auckland will be considered. We also present this amendment in the context of the annual review of relations released in March by the Human Rights Commission. That review identified Maori representation in local government and an effective voice for Maori in the decisions of the new Auckland Council to be among the top 10 race relations priorities. 
Another foundation for the amendment is due recognition for the Declaration of the Rights of Indigenous Peoples. We are particularly mindful of article 18 which sets out the aspiration that indigenous people have the right to participate in decision making in matters that will affect their rights through representatives chosen by themselves. The amendment is in itself explicit recognition that these issues are respectively not recognised by a Maori advisory group and on that I agree with Mr Twyford. We are also motivated by the desire to uphold the nation’s constitutional foundations current law and the wish of the people particularly mana whenua for the benefit of Maori and the wider public. 
The final platform for this amendment being presented is to enact the intentions of the Local Government Act 2002 which sets the expectation that local authorities will foster Maori capacity to contribute to the decision-making processes of the local authority. 
I present this Supplementary Order Paper in the knowledge that the Treaty was effectively absent from New Zealand legislation for over 135 years. In fact it was not until 1975 that the Treaty was put into legislation through the Treaty of Waitangi Act which set up the Waitangi Tribunal and delegated a role to the tribunal to determine the meaning of the Treaty and Treaty principles. Since that time Parliament has included Treaty legislative references and provided some legislative guidance on the Treaty’s meaning. Our Supplementary Order Paper provides the key statement: “This Act must be interpreted and administered so as to give effect to the principles of the Treaty of Waitangi.” In doing so we believe these provisions align with other similar legislative provisions that are often used in the statute to ensure the Treaty is treated with the highest level of attention. 
But there is another element to the Supplementary Order Paper that bears further discussion and that is the wording “to give effect”. Those in the House with the good knowledge of the statute will recall that this is found in section 4 of the Conservation Act 1987. It states: “This Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi.” If one were to wander through legislation one would see a colourful menu of clauses that effectively incorporate the Treaty. There is a rich archive of legislative activity in relation to the Treaty which has helped to guide the appropriate interpretation of Treaty clauses in legislation. We understand that there is a wide spectrum of knowledge around this House about what the Treaty means in practice. 
If there was ever an issue to which the Treaty principles should be applied it would be in the Local Government (Tamaki Makaurau Reorganisation) Act 2009. The governance reorganisation of Auckland would have been an entirely appropriate mechanism to enhance Treaty responsiveness. It did not and more the shame but that is another story. The Local Government (Auckland Law Reform) Bill is a chance to set that record straight and to pursue an honourable course of Treaty jurisprudence. Our intentions in drafting the Treaty clause are to provide for the ongoing engagement of tangata whenua in the scheme and to ensure that the distinct situation of iwi Maori including rights and interests under the Treaty are fairly accommodated in implementation of the scheme. 
I will return to the notion of Treaty principles. In case there is any doubt the Court of Appeal defines these principles as a relationship of a fiduciary nature that reflects a partnership imposing the duty to act reasonably honourably and in good faith; states that the Government should make informed decisions; the Crown should remedy past grievances; there should be active protection of Maori interests by the Crown; the Crown has the right to govern; and Maori retain rangatiratanga over their resources and taonga and have all the rights and privileges of citizenship. If members are still unsure they should consult the Waitangi Tribunal which gives further specificity to the principles as partnership; fiduciary duties; reciprocity—the cessation of Maori sovereignty in exchange for the protection of rangatiratanga leading to the duty to act reasonably honourably and in good faith; mutual benefit leading to the duty to act reasonably honourably and in good faith; redress for past grievance; equal status of the Treaty parties; the Crown cannot evade its obligations by conferring its authority on another body; active protection of Maori interests by the Crown; options—the principle of choice; and the courtesy of early consultation. 
And if that is still not enough there are always the principles proposed by the executive: the Government’s right to govern; the right of iwi to self-management of their resources; redress for past grievances; equality—all New Zealanders are equal before the law; and reasonable cooperation by both parties. 
I have gone to the trouble of spelling out these legislative references and describing the Treaty principles because it appears that some members of the House are still not aware of their meaning. The truth is that we have come a long way since 1877 in  
Wi Parata v The Bishop of Wellington and the Attorney-General 
 which suggested that the Treaty was a simply nullity because Maori tribes were incapable of performing the duties and therefore assuming the rights of a civilised community. We have come a long way. We are in new enlightened times times that reflect the strength and survival of iwi who have advanced the debate so significantly about Treaty rights. The Maori Party is extremely proud to have brought to this debate the crucial significance of the Treaty for local government organisation in such a key issue as the Auckland law reform. The Treaty clause is about recognising our founding document and recognising that the Treaty is about joint responsibility and working together. The scheme also relies on regulations for much of its implementation. The Treaty clause will ensure iwi and Maori are able to participate in the development of these rules. The amendments we put forward clarify how the rights and interests of iwi under Te Tiriti o Waitangi are to be incorporated in this legislation. They provide for consultation with iwi on matters under the Act and they breathe life into this legislation in terms of enacting the responsibilities of the Crown to incorporate the Treaty into legislation.