On 31 May 2023 the Kaipara District Council (KDC) voted to resign its membership of Local Government New Zealand (LGNZ) (here). There are 78 local authorities in New Zealand and Auckland city is the only other council to quit LGNZ, at least at this stage.
LGNZ has raised the hackles of many councils throughout the country because of its support for the Three Waters legislation and its signing of a Heads of Agreement Partnership agreement with the government. It also accepted a substantial payment from the government which many see as a bribe to gain LGNZ's support for the reforms.
Scott Necklen, the Deputy Chief Executive of LGNZ, was on video link at the Kaipara District Council (KDC) monthly meeting on 31 May 2023. He was aware that the agreement with the government over Three Waters had caused a lot of concern throughout the country and he tried to “clarify" the situation for KDC councillors. His mission was to persuade the KDC to remain in the LGNZ fold. He argued on behalf of LGNZ:
We have never expressed unqualified support for the government’s model. We’ve worked very hard to kind of tweak and help with that process and assist members through that process.
We secured funding to support councils during that time. We negotiated with the government to get an 8 week feedback period and that that was also supported by funds to provide technical expertise.
There has been some conversations around our signing of an agreement with government. I want to be really clear that it wasn’t to support their policy. It was very much their government policy. It was for us to support the sector through that process, and that is still ongoing.
The problem is that the wording of the Heads of Agreement document speaks for itself, and its words tell a very different story. See for yourself:
The agreement is between LGNZ and the Crown (the government).
The sub-heading of the document sums up the purpose of the agreement:
Partnering Commitment to Support Three Waters Service Delivery Reform.
This is reflected in:
4.2 Accordingly, LGNZ commits to
supporting, endorsing and promoting the Three Waters Reform Programme.
And:
2.8 Partnering principles – Three Waters Reform
The Crown and LGNZ each wish to conduct their working relationship
with the other party in relation to, and throughout the period of, the Three
Waters Reform Programme in good faith and in accordance with the following
objectives and principles:
(a) shared intention: the shared intention of supporting the Three Waters Reform Programme, including ensuring a smooth transition and successful implementation of the Three Waters Reform Programme;
In addition, if the government decided to adopt and “all in” legislated approach to Three Waters, LGNZ committed in 4.3 not to oppose such an approach, but could “express disappointment”.
There can be little doubt that this was a partnership between the government and LGNZ to embed the Three Waters proposal in legislation.
And, the price paid to LGNZ for its part in the process?
It appears that LGNZ received $1 million for sector engagement and $900,000 for reform technical support. (Confirmation needed.)
LGNZ: Democracy or preferential treatment for Maori?
In all of its governance documents the LGNZ places democratic principles at the pinnacle of its values. That may be sound somewhat overstated but that is the sort of language that the LGNZ adopts itself. It is full of slogans about its democratic role that are rather overblown and even melodramatic. Take a look at the following documents.
Introducing the report, President Stuart Crosby had this to say:
In November, National Council endorsed LGNZ’s new strategic direction - with a new purpose and vision to underpin its work over the next five years. The purpose is to be local democracy’s vision and voice and LGNZ’s bold new vision is to create the most active and inclusive local democracy in the world.
Our new purpose is to be local democracy's vision and voice.
Our vision is for Aotearoa New Zealand to be the most active and inclusive local democracy in the world.
We believe that to grow a great New Zealand, we need thriving local communities and a strong local government.
We will ensure that local democracy – and local voice – is at the front and centre of all our work.
More slogans:
We fight for the right of communities to choose how they live and to have their voices heard
We believe that active, inclusive communities are what builds national success, confidence and character, for generations to come.
Ensuring every New Zealander can participate, thrive and be represented by Local Government.
Vision:
The most active and inclusive local democracy in the world.
We are the unashamed champions of local democracy
Treaty/Maori policies
There is a remarkable switch from being the bastion of democracy to being the mouthpiece for Maori radicalism.
Even the Three Waters heads of
agreement (July 2021) included this provision:
2.4 Ensuring recognition of rights and interests of iwi/Māori
in three waters service delivery
The Crown and LGNZ recognise Te Tiriti o Waitangi/Treaty of Waitangi and the protection and promotion of iwi/Māori rights and interests in the delivery of three waters services, including through existing Treaty settlement mechanisms. Water can be a taonga of particular significance and importance to Māori and both parties recognise the importance of working in partnership, and acting reasonably and in good faith with the Treaty partner throughout the reform process. Both parties recognise the reform is a significant opportunity to improve outcomes for Māori in the delivery of three water services.
LGNZ maintains that Maori are a Treaty partner. That is not correct in law. They were certainly a “party” to the Treaty but a race (or any other entity) cannot be in partnership with the Crown. The Crown has absolute sovereignty and it cannot be shared.
There is no legal basis for such an assertion, and many councils, no doubt. felt that LGNZ was supporting the views of the current Labour government which supports preferential racial treatment for Maori and supports the partnership concept.
Such a stance is clearly contrary to the various values and statements of the LGNZ in its governance documents. It is also contrary to section 41(3) of the LGA2002 which requires elected members to be responsible and democratically accountable for the decision-making of the local authority. That means equal rights for all citizens.
There is also the statement that LGNZ recognises Te Tiriti o Waitangi/Treaty of Waitangi and the protection and promotion of iwi/Māori rights and interests in the delivery of three waters services and that water is a taonga (treasure) of Maori and therefore due special consideration. This misrepresents the situation. Whilst the government acknowledges that Maori have interests - not amounting to ownership – in certain bodies of water (such as lakes and rivers), these have not yet been defined, except for claims that have been settled. But water in its natural state, as in three waters, is not owned by anyone. See https://thetreatyfacts.blogspot.com/p/ownership-of-bodies-of-water_4.html and https://thetreatyfacts.blogspot.com/p/do-maori-own-water.html
This stance by LGNZ not only misstates the law, it also gives Maori some justification for the claim that they own the water, with the corollary that the rest of the people in New Zealand have lesser rights than Maori.
It gets worse.
The Guide to New Zealand Standing Orders
Just as the various governance documents extolled the democratic values of LGNZ in overstated rhetoric, this Guide does much the same but in reference to Maori rights purportedly derived from the Treaty and from their so-called indigenous status.
It is one of those confusing documents where all the headings are in English and Maori and Maori words are used for common words in English. Although this guide is meant to assist councils throughout New Zealand, you will not see the word council used. The te reo word kaunihera proliferates the document.
The name of our country is now referred to as Aotearoa New Zealand. This suggests that LGNZ believes that our country’s name can be changed without due legal and democratic process.
Introduction (page 5)
Standing orders also have an important role to play in assisting kaunihera to meet their obligations and responsibilities under Te Tiriti o Waitangi, whether those responsibilities are set in legislation or reflect respectful practice.
Standing orders have virtually no role to play as suggested. Standing orders are the rules of conduct of council meetings and procedure and apply equally to all elected members, regardless of race. In respect of legislation, the requirements of section 4 of the Local Government Act 2002 (LGA2002), a Treaty clause, are minimal and relate mainly to consultation in parts 2 and 6 of the Act. There are also some provisions of the RMA that deal with Maori and land. Clause 16 of Schedule 7 of the LGA2002 refers to standing orders and makes no reference to any preferential treatment for Maori.
As for “respectful practice”. This is a recent invention of LGNZ, or whoever wrote the Guide, that has no relevance to the treatment of Maori in the way local authorities perform their duties. Local authorities are expected to be polite and courteous in all of their dealings, and that is in respect of all people without any racial bias.
Local government obligations under Te Tiriti o Waitangi
Local governments are part of the governing framework of Aotearoa New Zealand with obligations that flow from the Crown’s duties under Te Tiriti o Waitangi
No time is wasted in stating where the
LGNZ stands on the issue:
Local government’s empowering statute, the Local Government Act 2002, along with other acts of parliament, sets out the expectations and requirements of local governments, that relate directly to the Crown’s obligations to Māori.
Standing orders provide a mechanism for achieving the following:
Acknowledging the mandate of mana whenua as the traditional governors of Aotearoa New Zealand and the area of your kaunihera.
The guide continues:
Acknowledging the mandate of mana whenua as the traditional governors
Iwi and hapū have a mandate based on their role as the indigenous governors of the land. This is quite different from the ‘stakeholder’ status given to many local organisations kaunihera works with. It is a status that would exist even if it wasn’t enshrined in Te Tiriti o Waitangi.
It is incumbent on local authorities to work with relevant iwi and hapū to determine how best to recognise their status. A common approach involves developing a joint memorandum or charter of understanding which can provide clarity around expectations, including how current and future engagement should occur.
Not only is this wrong, it is nothing more than a fairy tale. To suggest that the mandate is enshrined in the three Articles of the Treaty is dishonest. And, if it is not in the Treaty, where is the source of the mandate to be found? There is nothing in legislation or anywhere else that mentions such a mandate.
Maori are not the indigenous people of New Zealand. That is a simple fact.
To suggest that they were the original governors of the land and therefore derive some superior rights because of that is nonsense. It is a novel proposition and it is surprising that it comes from an organisation that supposedly vaunts its democratic values. Maori either ceded sovereignty to the Crown under the Treaty, or sovereignty was asserted by the Crown subsequently by Captain Hobson in 1840 and 1841. The courts of New Zealand accept that sovereignty was ceded. How then can Maori have any residual governorship role?
See https://thetreatyfacts.blogspot.com/p/article-1-did-treaty-cede-sovereignty.html and https://thetreatyfacts.blogspot.com/p/hobsons-assertions-of-sovereignty.html
Note the compulsory element in the language used to impose this burden on councils. It is a "mandate", in other words legally binding. And “it is incumbent on local authorities”. The reality is that it is a baseless fabrication.
It is also notable that there is no mention of such a mandate, or any reference to Maori or the Treaty in the 2022 version of Standing Orders (except in reference to the use of te reo Maori). Presumably that is because the actual Standing Orders is a statutory document under clause 27 of Schedule 7 of the LGA 2002 and must not contravene the LGA or any other Act. There is therefore no reference in the actual standing orders document to any other claimed fanciful obligation, requirement or mandate.
Expectations of Maori
There is a legal opinion from legal firm Franks Ogilvie about this topic which I understand has been sent to all councils in the country. It is highly critical about some of the contents of the LGNZ 2002 Guide to Standing Orders in respect of obligations towards Maori. The opinion states that the LGNZ advice goes well beyond what are legal obligations. Some of the statements of the LGNZ are unbalanced and wrong. But more than that, the legal advice suggests that the Guide risks creating expectations among Maori that cannot be justified and can never be delivered. It simply adds to the “grievance industry” arising from the Treaty. The fact that the so called obligations and mandate are promoted as legal obligations by the LGNZ and supported by the Department of Internal Affairs lends the advice in the Guide an authority that it does not have.
If local authorities are going to have the ability, either individually or jointly, to confront the wave of activist Treaty pressure and stand firm on their actual obligations under the law of New Zealand, they desperately need advice from the organisation that represents them that is honest and reflects the law of the land, and is not partisan or corrupted in any way. That it is why they are members of the LGNZ, to get that advice.
In the minds of many, LGNZ has surrendered its independence and become a lackey of the government in promoting non-democratic and racist policies, and has compromised its democratic principles by taking on board completely unsubstantiated Maori activist slogans. It has let down its members and proved unworthy of their trust.
Craig Little, Mayor of Wairoa and a member of the National Council of LGNZ, was also on the video link for the KDC meeting discussing membership of the LGNZ. He was fully aware of the concern caused by the overstated Maori aspect of the Guide. He suggested to KDC councillors before they voted:
While you might have been be a bit upset with our set of standing orders, if you’re not happy with that set of standing orders put in front of you, just adopt another set that you like.
