Summary
The High Court declined Te Runanga O Ngati Whatua’s application to judicially review the Kaipara District Council’s decision to disestablish its Māori Ward. The key issue was whether the Council was required to consult with local iwi and hapū before making the decision.
Background
In July 2024, the Local Electoral Act 2001 was amended to require local authorities who had established a Māori Ward by resolution under the previous Labour Government’s change, to decide by 6 September 2024 whether to retain or dissolve the Ward. You can read more about Māori Wards and the Amendment Act changes, here.
On 7 August 2024, the Kaipara District Council decided to disestablish its Māori ward. This drew considerable public debate and media attention as it was the only local authority to do so.
If authorities decided to disestablish its ward, the Amendment Act required Councils to decide on an initial proposal for a “representation review” by 13 September 2024. Previously, in 2018, such a proposal had taken the Kaipara District Council (“Council”) 3 months to decide upon.
The Chief Executive of the Council had concluded there was no requirement to consult with the community on the decision, including Māori, partly because there was no time to do so without jeopardising the (potential) representation review.
The Case
Te Runanga O Ngati Whatua (“Ngati Whatua”) (a Māori Trust Board representative of iwi and hapū occupying lands between the Hokianga Harbour and Auckland), brought a judicial review application seeking a declaration that the Council failed to adequately consult with local iwi and hapū before making the decision.
Ngati Whatua claimed the decision was in breach of the Local Government Act (“LGA”), and in particular the Council’s obligation:
There was a further claim that Ngati Whatua had a legitimate expectation that they would be consulted.
Sections 81 and 82 of the LGA, the Court concluded, did not mandate consultation with Māori. Consultation with Māori may be one way in which a local authority provides opportunities for Māori to contribute to decision-making processes under section 81, but it is not the only way. The Council’s Chief Executive held monthly meetings with representatives of relevant iwi and at these he informed them of the Amendment Bill, potential options from this, and timeframes. The Court therefore found processes for Māori to contribute to the decision-making process were “maintained”.
Section 82 similarly did not create a duty to consult, and the Council had a discretion as to the manner in which it considered the principles. Justice Campbell found the Council’s decision was not unreasonable in the circumstances due to the short timeframe for the representation review prescribed by the Act.
Result and Significance
The Court declined Ngati Whatua’s application, finding in favour of the Council.
The case is significant due to its conclusions on the obligations owed to Māori under the LGA. Whilst previous case law had considered other decision-making provisions under the Act finding these didn’t create a duty to consult Māori, this had not been considered in relation to section 81. Ultimately, local authorities have discretion as to what processes they have in place to promote Māori contribution to decision-making, and how they consider principles of consultation.
For further information on this case or similar issues, please contact Director Brigitte Morten.
Franks Ogilvie acts for Kaipara District Council but did not advise on this particular matter.
