National’s RMA Changes – a major constitutional victory for Iwi Leaders

New Zealanders are inherently egalitarian – it’s part of who we are. It’s not surprising therefore, that we as a society believe in equality before the law. We do not want local government – nor the country – divided by race.

As a result, whenever communities are asked to vote on the introduction of Maori seats on their local councils, they have rejected it – in many cases overwhelmingly. Under the Local Electoral Act 2001, if a council decides to introduce Maori seats unilaterally, the decision can be challenged if five percent of local electors support the call for a referendum. That’s what occurred in New Plymouth in 2015, when locals rejected the District Council’s Maori Ward proposal by 83 percent.

In response Mayor Andrew Judd called his constituents ‘racists’ and proposed a law change to stop anyone else from holding a similar referendum in the future. With help from the Maori Party, he presented a petition (signed only by himself) to Parliament last May requesting that the House of Representatives “consider a law change to make the establishment of Maori wards on district councils follow the same legal framework as establishing other wards on district councils”.

In effect, the petition – which is still in front of the Justice and Electoral Select Committee – would abolish the right of electors to challenge the introduction of Maori seats.

Andrew Judd, who clearly believes that when it comes to Maori representation, democracy has no place, says his petition is just the start – he wants a half of all local authority council representatives to be Maori.

As could be expected, Iwi leaders agree. With an ultimate goal of local authority co-governance, they want to be at council tables, but believe they “should not have to rely on voters’ whims to get there”. As a result, they are pursuing alternative means of gaining council representation, including through Treaty settlements, through pressuring local councils to appoint tribal delegates with voting rights, and, more insidiously, through the extortionary demands of the Maori Party, which threatens to withdraw Parliamentary support if they don’t get their way.

Some tribal leaders are now calling the principle that only elected representatives should have the right to vote on councils, “old world thinking”. They apparently believe that Treaty settlement money and resources gives them a privileged status and a right to rule. Like Mr Judd, they think that democracy has no place when it comes to things Maori. 

But we say it’s tribalism that’s “old world thinking”, not democracy.

This week’s NZCPR Guest Commentator is former ACT Party Leader and political columnist Rodney Hide, who believes tribal organisations have no place in Western democracies:

“The approach by successive governments to Maori economic development is a triumph of hope over understanding and experience. More darkly, it’s the triumph of politics over what is good and just. The policy is to pump tribalism as a viable form of economic organisation. The tribal structures themselves would hardly exist outside of state mandate and massive subsidy. The result is a long list of constitutional outrages and economic sabotage.

“The problem is straightforward: Tribalism is the worst form of economic organisation. It’s collectivist, it lacks incentive to perform, the principals can’t readily sack their agents and there’s invariably a complete lack of transparency and hence accountability. The structure works to the advantage of tribal bosses, not members. In modern society that shouldn’t matter but the state’s mandating and subsidising of tribes gives tribal bosses financial and political clout they otherwise would not enjoy.”

And that’s the problem. Under the National Government, the ‘political clout’ of Iwi Leaders has grown immeasurably. The revelation that there have been at least 44 meetings between Iwi Leaders and Ministers of the Crown, since National was first elected in 2008, bears testimony to that – as does the signed Protocol that the Iwi Leaders Group has with Cabinet to ensure their views “are represented in the policy development process”.

With Iwi Leaders prioritising the tribal co-governance of councils (no doubt so they can get their hands on the control of fresh water) by mid-2016 they were on track to gain the statutory powers they need: “The Iwi Leaders Group in partnership with the Maori Party is advocating for the changes in the RMA area to be consistent with the aspirations of Iwi Maori. Key areas of focus have been revised legislative drafting for Mana Whakahono a Rohe arrangements; ensuring that a higher benchmark is established for Iwi engagement with councils.

“For some Iwi co-governance and co-management arrangements have been negotiated through Treaty Settlements or through direct negotiation with regional and district councils. However for many Iwi, these co-governance and co-management arrangements do not exist and there is a clear lack of engagement from local councils on matters of decision making on resource management. The Iwi Leaders Group is working with the Maori Party to jointly advocate for our proposed amendments with direct discussions with Minister Smith.”

Minister Smith has more than complied – at significant cost to other New Zealanders, he has bent over backwards to make the Iwi Leaders’ goal of council representation without the need to be elected, a reality. What’s more, by including the radical new Mana Whakahono a Rohe agreements in the Resource Legislation Amendment Bill – after public consultation had ended – the Minister has introduced a major constitutional change to Local Government, with barely a ripple of public concern.

According to the Minister, the new powers for iwi and hapu will include “plan-making, consenting, appointment of committees, monitoring and enforcement, bylaws, regulations and other council statutory responsibilities” – including over fresh water. The Bill’s commentary explains that the Mana Whakahono a Rohe agreements “have a broader scope that includes consenting and monitoring”. Public law expert Stephen Franks explains that they could require iwi “to ‘participate’ in monitoring and resource consent activities as ‘partners’ with a local authority”, and notes that councils could be told “they must fund iwi participants with ratepayer money”.

By dictating that Maori tribes and family groups can sit at council tables, co-governing the district or region – without any public engagement whatsoever – National is depriving New Zealanders of the opportunity to participate in a nation-wide referendum process of the sort that usually accompanies major constitutional change of this magnitude.

Nor does it seem to matter to the Government that under the new arrangements, iwi and hapu will have a vested interest in the outcome of decision-making and could be hopelessly conflicted, or that the agreements will trample over local democracy and undermine the Rule of Law – they are simply turning a blind eye.

With the Resource Legislation Amendment Bill sitting on the Order Paper ready for the Committee Stages and Third Reading when Parliament resumes next week, the Maori Party and Iwi Leaders are already claiming victory. After all, who could possibly have imagined that a party that won just 1.3 percent of the party vote at the last election, could convince a ruling party founded on the principles of equality, democracy, and the rule of law, to impose the race-based co-governance of local authorities onto the country with no public mandate.

The Chair of the Freshwater and Natural Resources Iwi Leaders Group, Selwyn Parata says the inclusion of Mana Whakahono a Rohe agreements in the RMA is one of the most significant achievements for Maori since the Act was created in 1991 – especially by enabling hapu, as well as iwi, to sit at council tables making resource management decisions: “The Maori Party has negotiated significant concessions on the Resource Management Act… Mana Whakahono a Rohe agreements provide a new platform for iwi and hapu to engage with Councils… on balance this is a vast improvement… these changes put our people in a strong position to advocate for their own views around the council table.”

It bears repeating that the National Party has engineered these legislative changes in such a way as to deny public consultation. In other words, without any public engagement whatsoever, what Maoridom believes are the most powerful legislative changes over the last three decades – forcing Maori rights onto New Zealand’s local authorities –  are about to become law.

It’s not only undemocratic, it’s appalling.

I have sent a letter to the Prime Minister appealing to him to stop the Bill. We feel so strongly about this, that we are publishing the letter in the Sunday Newspapers – so the public can better understand what’s going on and add their voice to our appeal to the PM to stop the Bill. Stephen Franks is assisting with media inquiries.

By Muriel Newman

Here is our letter:

Dear Prime Minister,

We respectfully ask you to govern for all New Zealanders – not just the Maori tribal elite – by stopping the Resource Legislation Amendment Bill as currently drafted.

We are referring to the concessions you have given to the Maori Party to allow iwi chiefs to sit alongside elected council members and officials and co-govern the private property of others.

Various deals have been done but the most damaging are the sweeping new ‘Mana Whakahono a Rohe’ agreements that will permanently force councils to kowtow to iwi – and hapu.

Your Minister for the Environment Nick Smith says their new powers will include, “plan-making, consenting, appointment of committees, monitoring and enforcement, bylaws, regulations and other council statutory responsibilities”.

That also includes fresh water according to your Minister.

These agreements with Iwi Leaders were imposed on the country behind closed doors. The secret deals were shaped with no consultation, no publicity, no warning, and no published minutes or agendas. By giving iwi seats at the council table you will embed the Maori world view and spiritualism into the heart of local government. This is not what most New Zealanders want.

What is most galling is that you have not even asked the community what it thinks about the Mana Whakahono a Rohe agreements. The reality is there is no community demand for Iwi Leaders to co-govern local authorities, but once the agreements are in place they will be there forever – nothing can change or remove them unless iwi agree. Councillors and the community will have no right to end them – even if 90 percent of voters decide they are not working. The fundamental protections of democracy and the rule of law will be forever lost.

The respected constitutional lawyer Stephen Franks says, “The Bill entrenches permanent race privilege and corruption… The provisions are a major constitutional change. They subordinate powers entrusted to elected local governments, in deliberately obscure words, to racially inherited power, beyond the reach of electoral recall.”

Prime Minister, where is your mandate for these radical changes? You did not campaign on them at the last election. For major constitutional change such as this, surely there should be a public referendum process. If you pass this Bill you will be betraying National Party founding principles – and letting down those who voted for you in 2014.

We understand that these agreements were planned before you became Prime Minister. We say it’s now time for you to step up and show that you intend to govern for all New Zealanders, not just the 1.3 percent that supported the Maori Party.

They are holding you to ransom because you want to keep power. But in serving Iwi Leaders, you are paying for their demands with our rights, our properties, and, no doubt, our cost.

Please stop this Resource Legislation Amendment Bill now – for the sake of all New Zealanders.

Please feel free to pass this newsletter on to anyone concerned about the proposed law change and urge them to contact Bill English.

First published at the New Zealand Centre for Political Research on March 26, 2017.