A call for Auckland Council to review how it currently delivers its Tūpuna Maunga Authority co-governance obligations and responsibilities, to ensure it delivers ‘common benefit’ to Aucklanders
A (shortened) verbal version of the following discussion paper was presented to Auckland Council’s Governing Body meeting on
Thursday 23 March 2023. Watch video here
Here’s what the video shows:
* Our presentation
* Questions put to Anna by Councillors
* Debate over whether or not to accept Anna’s request and the subsequent vote and aftermath
Introduction
This paper is not intended as a criticism of co-governance in itself. However, we are growing increasingly concerned at how Auckland Council has been interpreting its Tūpuna Maunga Authority (TMA) co-governance responsibilities in a divisive way that has failed the communities it serves. This is evidenced by the maunga tree situation, which saw occupation and legal action (with more possible), and growing public distrust of the Authority, Auckland Council and the Tāmaki Collective.
Auckland Council helped create this situation by abandoning its responsibilities towards the social, economic, environmental and cultural wellbeing of the communities it represents. Furthermore, to date it hasn’t given meaningful consideration to Aucklanders’ views and preferences in relation to the TMA and its practices, nor has it held the Authority to account.
In this context, ‘Auckland Council’ comprises:
The Council’s (elected) representatives who serve on the Authority
The Governing Body
Local boards – particularly those with maunga in them
The (unelected) officials
All of these groups have overlapping but distinct responsibilities in this co-governance relationship yet in each case there is a lack of clarity around exactly what the responsibilities are.
This paper discusses the current situation in the context of what was originally proposed for the Auckland Council – Tāmaki Collective co-governance relationship under the Collective Redress Act and suggests a constructive approach to effecting enduring systemic change for the benefit of all Aucklanders.
Tūpuna Maunga Authority’s co-governance foundations
The Authority currently administers 16 maunga, most (but not all) of which were returned to the Tāmaki iwi collective in 2014 under the Collective Redress Act. The Collective represents 13 of the 19 Crown proclaimed ‘mana whenua’ in Tāmaki Makaurau.
Although the Act provides mechanisms by which the Collective’s members may exercise mana whenua and kaitiakitanga over the maunga, it is not a carte blanche arrangement. This is evidenced by TMA’s establishment as a co-governance body and the Act’s provision that the maunga are held by the trustee for the common benefit of the Collective and “the other people of Auckland”.
Despite how it is often framed, “the other people” does not equal “Pakeha”. This grouping also includes Māori from other iwi and people from dozens of other ethnicities. People who identify as European New Zealanders only comprise around half of the “other” Aucklanders; Māori in this group vastly out-number the Tāmaki Collective’s members.
Chris Finlayson, the Treaty settlement minister at the time, is on record as saying the “other people” phrase was included to emphasise the broader community’s legitimate ongoing interest in the maunga: “It was accepted that the community generally loved the maunga and no-one had a monopoly on care for [them]. Sensitivity to the broader community’s aspirations is relevant.”
Furthermore, the maunga are not private property; they are public reserves. Ratepayers fund maunga maintenance and capital works to the tune of more than $12 million per annum, in addition to at least $1m of other hidden costs incurred by Council but not captured by the Authority’s financial reports. This includes the cost of governance, resource consents, property management and general corporate support that Council provides the Authority.
The Authority is also subject to elements of local government legislation. For example, it is required to disclose official information, and to give the public the opportunity to have their say and their views taken account of.
Just because the Authority is a statutory body does not mean it can do whatever it likes!
The current situation vs the desired situation
These days, many elected and unelected Auckland Council personnel seem to believe the Council will fail in its Treaty related obligations to the Authority if it disagrees with anything it wants, particularly if it’s what the 13 Tāmaki Collective iwi and hapū supposedly desire.
Consequently, the public have been refused permission to present TMA related concerns to their local boards. Yet those same local boards ‘represented’ their communities when they made submissions in the Authority’s public consultations around proposed Integrated Management Plan amendments.
When challenged over one local board’s decision to refuse a maunga-related delegation, a senior council executive stated this was “in line with Auckland Council’s commitment to respecting the co-governance arrangements with mana whenua”. He went on to say: “Co-governance arrangements like the TMA are designed to facilitate our obligations under Te Tiriti o Waitangi. Showing respect for the statutory authority of the TMA is part of how Auckland Council honors its Te Tiriti obligations. As such, requests to counter or undermine a TMA decision are very sensitive matters...”
A complaint was subsequently lodged with the Ombudsman and an investigation is underway.
Historical Council documents and minutes relating to the TMA’s set up all refer to local communities playing an important role in maunga stewardship, and local boards advocating on behalf of their communities to ensure maunga-related planning and maintenance takes local considerations into account.
This sentiment underpinned the council’s decision for its Maunga Authority membership to comprise three Governing Body and three local board members. The original rationale included:
Allowing Governing Body members to account for views from a regional perspective
Allowing members of local boards with maunga in them to reflect views from a local perspective
Enabling stronger links between the Maunga Authority and local communities, many of whom are active in maunga stewardship
The minutes went on to note: “The maunga are significant landmarks and valuable local assets within their communities…Local boards play an important role in advocating on behalf of their communities and can help ensure local considerations are taken into account in [maunga] planning and maintenance.”
The Authority’s Integrated Management Plan also mentions working closely with local boards and diverse communities and refers to “community collaboration towards collective stewardship, the importance of the Tūpuna Maunga and sense of identity that all peoples derive...”
The reference to “diverse” communities is noteworthy in the context of the Council’s TMA member selection. It has become less diverse over the past two terms due to nearly all members being of the same political persuasion and drawn from the same three local boards.
Unquestioning compliance also has been evident in the budget setting process. The Council and TMA are required to seek public submissions on the TMA’s annual operational plan and budget, but dissenting submissions have been ignored. No attempt has been made to hold the Authority to account for how the previous budget was spent, nor have the Authority’s budgets been expected to conform with the Council’s environmental, climate and other policies.
The solution
If Auckland Council was intended to be a disempowered participant in this co-governance relationship, then it would not comprise 50% of TMA members and the Governing Body would not be required to consider its annual operational plan and budget.
Being a good TMA co-governance partner doesn’t require agreeing to everything, particularly if a significant portion of the community has concerns around what is proposed, or it undermines Council policies and/or represents poor use of ratepayer money. Nor should Auckland Council’s behaviour in this relationship depend upon the mayor and elected representatives’ politics or agendas. That’s why Auckland Council needs to be crystal clear about its roles and responsibilities in this relationship and align policies and processes accordingly.
The first step is to understand its obligations towards the Tāmaki Collective and “the other people of Auckland” designation under the Collective Redress Act. It can do this by agreeing clear and unambiguous answers to the questions:
1. What exactly is Auckland Council’s role as a 50% partner in this co-governance relationship?
2. How should all parts of the organisation fulfil those obligations?
3. If Council is only there to represent the Tāmaki Collective’s interests rather than the other people of Auckland’s, then what value is it actually adding and how is this co-governance?
Answering these questions could be done by way of a workshop that includes independent legal experts, elected and unelected personnel, and community representatives who have been at the pointy end of this co-governance arrangement. The resulting agreed outcome should inform all policies, processes, procedures – and expectations - for the Council’s TMA representatives, the Governing Body, local boards and Council officials. It is hoped this will lead to clear and unambiguous guidelines for each group being included in Auckland Council’s Governance Manual and TMA members manual.
Chris Finlayson has stated he expected Council’s Governing Body to act in ratepayers’ best interests and hold the Authority accountable when considering its annual operational plan and budget; hopefully this process will create that outcome.
Finally, Council officials ‘are employed in ‘public’ service so should be required to put their personal and/or political views or agendas aside when advising elected representatives on any matter - co-governance or otherwise.
Conclusion
Reviewing and resetting how all parts of the Council organisation operates in this relationship, and the Council and TMAs’ obligations to those they are tasked to represent will help improve public trust in the Council, the Authority and this co-governance model. It will provide an opportunity to set an inspiring example for future co-governance by ensuring an authentic and balanced Treaty relationship that requires all parties to be open and transparent, fiscally accountable and to act in good faith.
Note: The maunga and legal personhood
Some Governing Body members and Auckland Council officials have started referring to the maunga being legal persons, despite them not being designated as such in legislation. In this context, the term is being used to obfuscate and undermine the Collective Redress Act’s original intent, particularly in relation to how it applies to “the other people of Auckland”. Such references are spurious and should be dismissed as such.