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Race Relations Commissioner on Maori seats in local government

Friday, 4 February 2011 1:30 p.m.

Power Sharing in the 21st Century
Māori seats in local government: an "imaginative opportunity for justice"

Joris de Bres, Race Relations Commissioner
Te Papa Treaty of Waitangi Debates February 2011

Last year, Ngati Awa Deputy Chairman Pouroto Ngaropo stood for Mayor of Whakatane.  Three days before voting closed, the Whakatane Beacon published an assessment of the six contenders. Ngaropo was rated as a "splendid orator" and "comfortable with Māori and Pākehā", but "too Māori, too moko-ed" and "politically naïve".

The editor apologised in the next edition: "This was our opinion of why people may or may not support a candidate, and our view that some people would not vote for Mr Ngaropo because he is Māori and some would similarly be put off by a facial tattoo. The Beacon does not endorse or encourage such prejudice but simply recognises that, unfortunately, it exists. New Zealand still has some way to go before race and ethnicity no longer cause division. We apologise to Mr Ngaropo and to all others who were offended. The article was presented without malice or favouritism and was an assessment prepared with input from experienced staff who have seen the candidates in action."

So let me get this right. If you're Māori and you want to be the Mayor of Whakatane, you should try not to be too obviously Māori and avoid having any kind of cultural markers if you want the white folks to vote for you. You'd be naive to think otherwise.

Ngaropo failed in his bid for the mayoralty but attracted a significant number of votes. He was however elected councillor for the predominantly Māori Galatea-Murupara ward. Māori also stood in all other wards, but none were elected.

At the same time as Whakatane voters elected their district council, they voted for their regional council. Environment Bay of Plenty has had Māori seats for the last three elections, voted for by people on the Māori Electoral Roll.  There are three Māori seats on the 13 member council, and the Māori population in the 2006 census was 27.5%.  Whakatane had a Māori population of 42%, but its eleven member council has only one Māori. If the district council took up the option of Māori seats provided for in the Local Electoral Act, there would be four. Everyone would still have only one vote, but people on the Māori roll would be able to exercise it to obtain Māori representation.

The Whakatane District Council did consider Māori seats in 2005. They decided "this was an issue that affected all residents and, therefore, the community needed to determine whether separate Māori representation should be introduced." A referendum was held as part of the 2007 elections. Of the 9,656 votes cast, 70 per cent were against and 30% for.  The majority had spoken and power sharing with Māori was rejected.

All councils are required to do a representation review every six years. Most will be doing it this year. The Human Rights Commission has surveyed councils on whether they have ever considered Māori seats. Most have done so, either in a previous representation review or otherwise, and with varying degrees of thoroughness. Three, including Whakatane, decided to conduct a poll. None opted for Māori representation. Only one, the Far North District Council, signalled its support in principle and its intention to revisit the issue in 2011.  By contrast, last year's legislation appointing temporary Commissioners for the Canterbury Regional Council included a requirement for one of them to be knowledgeable about tikanga Māori. Ngai Tahu member Donald Couch was appointed by the government to provide this expertise.

Frustration at the failure of local councils to opt for Māori seats was expressed by. Wairoa Councillor Benita Cairns at last year's Diversity Forum: "If Māori wait for goodwill on the part of local authorities to establish dedicated Māori seats, they will be waiting a long time."

This view is echoed by Professor Janine Hayward of Otago University. She told the Commission: "I am increasingly of the belief that central government has an obligation to intervene and compel local government to provide more effective representation for Māori. It is almost ten years since local government was first given options to address this issue, and Māori remain chronically under-represented. The Local Government Act reminds us that the Crown (not local government) is the Treaty partner; central government must therefore accept responsibility for this important problem and find immediate and appropriate solutions." She recommended that the Local Electoral Act should be amended to establish Māori constituencies for all regional councils and local authorities.

Aside from requiring one of the Environment Canterbury Commissioners to be knowledgeable about local tikanga, the government has shown no inclination for legislation to require Māori representation. This was evident in their rejection of the recommendation of the Royal Commission on Auckland Governance for the establishment of three Māori seats on the new Auckland Council. This was despite the recognition by the Select Committee that "a large number of submitters recommended ensuring Maori had representation in some form under the new governance structure, and many argued that Maori representation should be guaranteed as a right because of the principles of the Treaty of Waitangi and the special status of tangata whenua." The Select Committee did urge the new Auckland Council to consider establishing Māori seats should there be community support, using the current provisions of the Local Electoral Act. They also noted that "the question of whether the existing legislation provides adequate opportunities for Maori representation is an issue of national significance, extending beyond Auckland, and resolving this issue should therefore be considered in that context". The new Auckland Mayor Len Brown has signalled his support for the establishment of Māori seats.

The Government has recently announced the terms of reference for a constitutional review, and it will include the question of Māori seats in Parliament and local government. This is a new and important opportunity to address the issue of power sharing with Māori in local government. The review is a three year process, and in no way removes councils' obligation to consider Māori seats in this year's representation review, even if some might see it as a convenient excuse.

The Commission published a report on Māori representation in local government  last year. It made seven recommendations. They were:

1. An analysis should be done of the results of the 2010 local government elections to determine the extent of Māori representation. This is in process by Local Government New Zealand, but the response has been too low so far to draw any conclusions.
2. Iwi and hapū should discuss whether or not they want Māori seats. Some have in the past been against the system, because it is based on the Māori electoral roll rather than mana whenua, but iwi in the Bay of Plenty are strongly supportive.
3. The new Auckland Council should proceed to establish Māori seats without further ado, subject to re-endorsement by Auckland iwi. The submissions to the Select Committee on Auckland Governance are sufficient evidence of community support.
4. Councils and iwi and hapū should have a discussion about Māori representation prior to their representation review.
5. Councils should support the option Māori prefer, and act accordingly.
6. The temporary Environment Canterbury Commissioners should resolve to establish a Māori constituency for Environment Canterbury for the 2013 elections.
7. There should be further national discussion on improved provision for Māori representation. This can now take place in the context of the constitutional review.

When the Bay of Plenty Regional Council first proposed Māori seats in 1996, they appointed Judge Peter Trapski as an independent commissioner to consider over 1000 submissions, of which three quarters were positive. He listed arguments from submitters both for and against.

Arguments In favour cited the Treaty, the current absence of Māori representation, better communication, more participation, and in the words of one submitter, the proposal provided "an imaginative opportunity for justice".

Arguments against will not sound unfamiliar fifteen years later:

• There is nothing to stop Māori standing for Regional Council.
• Councillors should stand on their own merits.
• The basis of democracy would be undermined.
• New Zealanders should be treated equally.
• The present system seems fair and democratic.
• It will create another area of conflict.
• We are one land and one people.
• We want to keep the costs of local government down.
• It will promote separateness; will lead to apartheid.
• The proposal is racist and extraordinarily divisive.

Judge Trapski considered the pros and cons and said:"It seems to me that however we regard democracy personally, the council ... ought to be guided by the fact that since 1867 the delivery of democratic government in New Zealand has been effected by a system in which there have been Māori electorates, and seats in the House of Representatives reserved specifically for people who enrol on the Māori roll. I suggest that Council must further be persuaded by the fact that this situation was reviewed in 1986 by a Royal Commission and that it regarded Māori seats "as an important symbol to Māori people of their special status as the indigenous people of New Zealand".

The judge further quoted the Royal Commission as follows: "Although they were not set up for this purpose, the Māori seats have nevertheless come to be regarded by Māori as an important concession to, and the principal expression of, their constitutional position under the Treaty of Waitangi. To many Māori, the seats are also a base for the continuing search for more appropriate constitutional and political forms through which Māori rights (mana Māori in particular) might be given effect ... These principles constitute what we believe to be the conditions under which an important minority might reasonably expect to enjoy a just and equitable share of political power and influence in a decision making system which is subject to the majority principle and over which the political parties hold sway."

The passage of the Electoral Act 1993 which provided for the continuation of Māori seats is described by Judge Trapski as "Parliament's declaration concerning the way in which democracy is delivered in New Zealand." He said the Bay of Plenty proposal "appears to be in total conformity with that declaration, and may therefore be regarded as constitutionally sound and democratic." The proposal "would give Māori no more voting power than the general population. Like everyone else, Māori will only have one vote."

When I spoke with regional councillors, council staff and iwi representatives in the Bay of Plenty last year, they were almost all very positive about the system of Māori representation. Even a councillor who is opposed in principle to separate Māori representation said "in practice it works very well. We have learnt to respect each other, and both councillors and staff have learnt a lot. The council is now very inclusive of iwi and that is a good thing".  Council chair John Cronin is on record as saying "The Māori seats are unique in NZ local government. We at Environment Bay of Plenty are proud of them ... They have proven their worth both to Māori and to non-Māori. They appear to have given to Māori a sense of participation and a sense of belonging in the democratic process that they did not appear to have before. The Bay of Plenty Regional Council is a richer democracy for their participation." Overall, respondents indicated that the introduction of Māori seats had been a positive and transformative process for the council. So why has no-one else followed suit?

In the 2007 local government elections, less than five percent of successful candidates were Māori, despite Māori forming nearly 15% of the population. Many councils had no Māori members at all. If all councils had Maori seats, they would comprise nearly 13% of the total. The Whakatane District Council example indicates that even where Māori constitute over 40% of the population, and even where there are Māori candidates in every ward, they may face barriers to election greater than candidates from the Pākehā majority. There may be many and complex reasons for this, and the establishment of Māori seats may not be a sufficient or the only solution, but it will certainly ensure that Māori do have a voice more in proportion to their numbers at the decision making table. According to the only council that has adopted this system, that has proved a benefit for both Māori and non-Māori.

Māori seats are a practical means of sharing some power in local government without compromising democratic principles. They do indeed represent an "imaginative opportunity for justice". From the evidence to date it seems that those who currently hold the power are reluctant to relinquish any of it. Māori have no statutory means of obtaining direct representation without the consent of the non-Māori majority. They may perhaps have to look to Parliament for relief, where Māori seats are part of the fabric of our democracy and where the number of Māori members of Parliament is more commensurate with the size of the Māori population. I shall await developments with interest.

Maori constituency map lowres