Environmental / Resource Management
The recent HC decision of Te Rūnanga O Ngāti Whātua v Kaipara District Council [2024] NZHC 3889 provides useful clarification regarding the obligation of councils to provide opportunities for Māori to contribute to decision-making processes (s 81 of the LGA) and consultation requirements in Part 6 of the LGA. It confirms that while s 81 imposes obligations on councils to enable opportunities for Māori to participate in council decision-making, councils have a broad discretion as to how to achieve this, and they are not under an obligation to consult with Māori before making a decision.
The core issue in the decision related to whether the Kaipara District Council (KDC) had failed to adequately consult or provide opportunities for Māori to participate in its decision to abolish its Māori ward.
Provision for Māori wards has long been a contentious political issue, which has resulted in several law changes. A 2002 amendment to Local Electoral Act 2001 granted councils the authority to establish Māori wards, subject to majority support through a public referendum. In 2021, the then-Labour Government amended the Local Electoral Acts to remove the requirement to hold a referendum on any Council decision to establish a Māori ward.
On 30 July 2024, the new National-led government passed the Local Government (Electoral Legislation and Māori Wards and Māori Constituencies) Amendment Act 2024 (the Amendment Act). Under Part 3 of the Amendment Act, “group 1 local authorities” (which included KDC) were required to resolve to either retain or disestablish their Māori wards by 6 September 2024. If a Council decided to retain its Māori ward, then it was obliged to conduct a referendum at the 2025 election. If a Council decided to disestablish, then it was required to undertake a short representative review by 13 September 2024 ahead of the 2025 election.
Given the short timeframes for conducting the review, on 1 August 2024 KDC scheduled an extraordinary meeting to consider the future of its Māori ward for 7 August. KDC decided to provide Kaipara iwi with an opportunity to make their views known to the Council before the decision was made. Most iwi groups were notified of the upcoming meeting on 1 August, but the chief executive overlooked formally notifying the applicant until 5 August. However, the applicant had been advised by the Māori ward councillor, Cr Paniora, of the upcoming meeting on 2 August.
Before the extraordinary meeting could occur, the applicant filed and served judicial review proceedings against KDC, claiming that it had breached its obligations under ss 81 and 82 of the LGA to consult with Māori. The applicant also argued, notwithstanding Part 6 of the LGA, that the KDC had a common law obligation to consult created by a legitimate expectation. The applicant sought a declaration stating the same, but did not apply for an injunction to prevent the Council from making its decision on the Māori ward.
The Court summarised the broad issues as:
- Did the Council breach s 81?
- Did the Council breach s 82?
- Did the Council have a common law obligation to consult created by legitimate expectation?
Section 81: Contributions to decision-making processes by Māori
The applicant argued that the Council had breached s 81(1)(a) by failing to establish and maintain processes to provide opportunities for Māori to contribute to the Council's decision on Māori wards. It also claimed that the Council had breached s 81(1)(c) by failing to provide relevant information to Māori in order to engage in consultation.
Campbell J clarified that, following the Court of Appeal’s decision in Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, s 81 of the LGA does not impose a duty to consult. Rather, local authorities are given a deliberately broad discretion as to whether to consult, and, if so, how.
Campbell J did not accept KDC’s submission that s 81 is focused on a local authority’s decision-making processes rather than any decisions specifically. Rather, s 76(1) mandates that “every decision” made by a local authority must be made in accordance with the provisions of s 81, as is applicable.
However, the Court did agree with the Council that s 81(1)(a), which requires local authorities to establish and maintain opportunities for Māori to contribute to decision-making, does not impose a duty to consult with Māori. Campbell J noted that the provision does not contain the specific term “consult”, which was a strong indication from Parliament that a duty to consult did not apply and the question of how to give effect to s 81 was ultimately at the discretion of the local authority.
Campbell J found that the Council had complied with ss 81(1)(a) and (c) through regular monthly engagement with the applicants where they were briefed about the implications of the Amendment Bill for Council’s decisions on the Māori ward. The Court found that the KDC had effectively communicated to mana whenua what options were available to the Council and that there would be a short timeframe for any decision. His Honour found that this demonstrated a compliance with ss 81(1)(a) and 81(1)(c) because it allowed the applicants to be prepared to contribute to the Council’s decision-making once the Amendment Bill was enacted. Notably, Council officers had informed mana whenua of the extraordinary meeting before the general public, and their views were canvassed. The Court found that if the Council indeed had any obligations under s 81(1)(c), it still had time to fulfil them, as the Māori ward would remain in place until the 2025 election.
Section 82: Principles of consultation
The Court rejected the applicant’s submission that the Council failed to comply with the principles of consultation under s 82. His Honour held that Part 6 did not impose an obligation to consult with Māori. The Court clarified that the effect of s 82 is that when a Council does choose to consult, certain principles must inform the consultation that the Council subsequently adopts. Subject to s 82(3), Councils are ultimately afforded discretion as to how these principles are applied.
The Court concluded that while it was not under any obligation to consult with Māori, it had nonetheless decided to do so when it invited iwi to express their views on the Māori ward decision ahead of the extraordinary meeting.
The Court held that the form and timing of consultation was not irrational. While the length of time afforded to this consultation was short, this was due to the tight timeframes imposed by the Amendment Act. The applicants had been consulted for their views, despite the short timeframe, which had been supplied to the Council ahead of the extraordinary meeting. The Court found that it was also reasonable for the Council to reliably assume the views of the applicant given its submission to the Justice Select Committee strongly opposing the Amendment Act.
The applicant had also sought to argue that the Council had erred by failing to consider or give any weight to the principles of the Treaty of Waitangi. It placed reliance on s 4 of the LGA which states that the provisions in Parts 2 and 6 relating to maintaining and improving opportunities for Māori to contribute to decision-making processes are intended to recognise and respect the Crown’s responsibility to take appropriate account of the principles of the Treaty of Waitangi. The Court rejected this argument, finding that s 4 is an explanatory provision and does not impose additional consultation responsibilities beyond those in Parts 2 and 6.
Was there a common law obligation?
The Court rejected the applicant’s submission that notwithstanding Part 6, the Council had a common law obligation of consultation on the basis of reasonable expectation. Campbell J clarified that because the clear intention of Part 6 of the LGA was to give Councils a wide discretion, it will be difficult for applicants to establish a concurrent common law duty to consult “except in truly exceptional cases”. The Court found that while the Council had consulted once in the past on a Māori ward question, this was not a practice that was settled in the sense of being “regular and well established”. It therefore did not create a legitimate expectation that the Council would consult with the same iwi or hapū on the decision whether to retain or disestablish the Māori ward.
