By Anna Longdill

Application to judicially review Kaipara District Council’s decision to disestablish its Māori ward – duty to consult under part 6 of the Local Government Act 2002? – common law obligation to consult created by a legitimate expectation?

Te Rūnanga o Ngāti Whātua v Kaipara District Council [2024] NZHC 3889 per Campbell J

The Kaipara District Council decided to establish a Māori ward in October 2020. It was in the process of conducting the required poll of electors when the Local Electoral Act was amended in March 2021, removing the requirement to hold a poll. At the 2022 council election, Kaipara’s first Māori ward councillor, Ihapera Paniora, was elected.

On 30 July 2024, the Local Government (Electoral Legislation and Māori Wards and Māori Constituencies) Amendment Act 2024 was passed, coming into force the next day.

This required local authorities, including the Kaipara District Council, to resolve by 6 September 2024 to either retain or disestablish its Māori ward. If it decided to disestablish, the council would have to decide on its initial proposal for a “shortened representation review” by 13 September 2024. If it decided to retain, the council would be required to conduct a binding poll at the 2025 election on whether to continue the Māori ward.

The chief executive of the council decided it should be prepared for all possibilities and, with the electoral officer, developed a timeline under which an initial proposal for a shortened representation review (if required) could be decided by 13 September 2024 if a decision on retention or disestablishment of the Māori ward was made on 7 August 2024.

All councillors were briefed on the timeframes on 31 July 2024.  Councillor Paniora expressed disagreement about the timeframe and lack of consultation with iwi.

On 1 August 2024, the mayor requisitioned an extraordinary meeting of council on 7 August 2024. The sole agenda item was to decide whether to disestablish or retain the Māori ward.

Mana whenua of the Kaipara District, Te Kuihi, Te Roroa and Te Uri o Hau, were advised of the meeting on the same date. They were asked for their views and given the opportunity to make a presentation in the public section of the meeting.  Council had also foreshadowed the need for an urgent decision in earlier monthly meetings with these groups, when the amending legislation was first introduced.

By oversight, Te Rūnanga o Ngāti Whātua (a Māori trust board which acts on behalf of Ngāti Whātua iwi, hapū and uri of the Kaipara, including Te Uri o Hau, Te Roroa and Te Kuihi) was not emailed until 5 August 2024, but it was already aware of the extraordinary meeting as councillor Paniora is one of its senior managers.

Mana whenua made it clear that they sought formal consultation, including time to bring their uri together to obtain their views before responding to the council.

At the extraordinary meeting on 7 August 2024, Paniora moved that the decision be postponed until iwi and hapū had been consulted. That amendment was lost. The mayor’s motion to disestablish the Māori ward was carried.

Te Rūnanga o Ngāti Whātua brought judicial review proceedings, claiming the council had breached its obligations in ss 81 and 82 of the Local Government Act 2002 and seeking an order setting aside the council resolution to disestablish its Māori ward.

Applicable principles: Local Government Act 2002 (LGA), Part 6, ss 76, 78, 79, 81, 82 – does s 81(1)(a) LGA impose a duty to consult with Māori? (no, consistent with other part 6 provisions, it gives local authorities a discretion whether to consult) – is s 81 LGA engaged when there is a challenge to a specific decision? (yes, the council’s submission that it isn’t engaged in specific decisions is rejected. Decision-making processes typically end with decisions) – did the council breach s 81(1)(a) by failing to establish and maintain processes to provide opportunities for Māori to contribute to the decision-making processes of the council? (no, the council provided opportunities for Māori to contribute to the council’s decision-making processes on the Māori ward question, including at the monthly meetings with mana whenua and through the existing Māori ward councillor) – does s 82 LGA impose a duty to consult with Māori? (no) – did the council nonetheless decide to consult with Māori? (yes) – was the council’s decision as to form and timing of consultation irrational? (no, council had a discretion, legislative deadline was a relevant consideration, rational basis for considering there could not be full consultation in short time available) – did the council have a common law obligation to consult created by a legitimate expectation? (no, it had consulted only once before on a Māori ward question, there was no settled, regular and well-established practice)

Held: The application for judicial review is declined.

Note: The court also briefly addressed two unpleaded matters – that the council’s decision failed to consider or give weight to the principles of Te Tiriti o Waitangi (s 4 LGA is not a vehicle for imposing additional consultation responsibilities on local authorities beyond those in parts 2 and 6) and that the council’s decisions were not in accordance with tikanga (the only evidence filed was in a reply affidavit, but was not reply evidence, so the court declined to consider it).

Te Runanga O Ngati Whatua v Kaipara District Council 2024 NZHC 3889