Te Rūnanga O Ngāti Whātua v Kaipara District Council
[2024] NZHC 3889
•18 December 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV 2024-488-70
[2024] NZHC 3889
UNDER Judicial Review Procedure Act 2016 BETWEEN
TE RŪNANGA O NGĀTI WHĀTUA
Applicant
AND
KAIPARA DISTRICT COUNCIL
Respondent
Hearing: 11 September 2024 Appearances:
M Chen and C J Saunders for the applicant
P M S McNamara and C J Ryan for the respondent
Judgment:
18 December 2024
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 18 December 2024 at 04.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
TE RŪNANGA O NGĀTI WHĀTUA v KAIPARA DISTRICT COUNCIL [2024] NZHC 3889 [18 December 2024]
[1] The applicant, Te Rūnanga O Ngāti Whātua, applies to judicially review a decision by the respondent, the Kaipara District Council, to disestablish its Māori ward. The applicant says the Council failed to consult with local iwi and hapū before making the decision.
Background
[2] Many iwi and hapū have connections to the Kaipara District. The Kapaira District Council has relationships with Te Uri o Hau, Te Roroa and Te Kuihi, as mana whenua of the District.
[3] The applicant is a Māori Trust Board constituted under the Te Runanga o Ngati Whatua Act 1988. It acts on behalf of Ngāti Whātua iwi, hapū and uri of the Kaipara, including Te Uri o Hau, Te Roroa and Te Kuihi.
Māori wards under the Local Electoral Act 2001
[4] Council elections are governed by the Local Electoral Act 2001. An amendment to the Local Electoral Act in 2002 empowered councils to establish Māori wards.1 Any such decision was subject to the right of electors to demand a poll on the decision. A valid demand required a petition from at least five per cent of electors. If a poll was validly demanded, the council had to conduct a poll of electors. The result of the poll was binding for the following two elections. In this way, a council’s decision to establish a Māori ward could be overturned by a majority of voting electors.
[5] Very few Māori wards were established under the 2002 amendment. Between 2002 and 2021, eight councils decided to establish Māori wards. Seven of those decisions were overturned by elector-demanded polls. Councils could also initiate their own binding polls under the 2002 amendment. Of eight such polls between 2003 and 2016, only one established a Māori ward.
1 Local Electoral Amendment Act 2002, s 49. In the case of regional councils, the Amendment Act provided for Māori constituencies. For convenience, I refer only to Māori wards.
[6] The Kaipara District Council decided to establish a Māori ward (called Te Moananui o Kaipara Māori Ward) on 28 October 2020. A valid petition demanding a poll was made. The Council started the process for conducting a poll.
[7] Before that poll was held, the Minister of Local Government under the then Labour Government announced, on 1 February 2021, that she would introduce legislation removing the ability for a council decision to establish a Māori ward to be overturned by a poll. That legislation, the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021, amended the Local Electoral Act as from 2 March 2021. There was no longer a requirement to hold a poll on any council decision to establish a Māori ward. Any poll that had been demanded but not yet held (as at the Kaipara District Council) was effectively cancelled.
[8] The Kaipara District Council’s decision to establish a Māori ward therefore applied for the 2022 Council election. At that election, Kaipara’s first Māori ward councillor, Ihapera Paniora, was elected.
[9] The 2021 amendment led to a substantial increase in Māori wards. Before the amendment, only three councils had Māori wards. After the amendment, the number of Māori wards increased to 35 for the 2022 local body elections. By the end of 2023, a further 14 councils had decided to establish Māori wards for the 2025 elections.
[10] There was a change of Government in late 2023. In April 2024, the new Government announced it would effectively repeal the 2021 amendment and reintroduce the poll provisions. Further, any council that had established a Māori ward without a poll (such as Kaipara District Council) would be required to either disestablish the Māori ward or hold a binding poll at the 2025 election on whether to retain the Māori ward. If a council decided to disestablish the Māori ward, it would then have to determine its representation arrangements for the 2025 election.
[11] Kaipara District Councillors were briefed on the Government’s proposal at a meeting on 17 April 2024. Councillors instructed Council staff to wait for further directions from the Government.
[12] To give effect to its proposal, on 20 May 2024 the Government introduced the Local Government (Electoral Legislation and Māori Wards and Māori Constituencies) Amendment Bill (the Amendment Bill). The Amendment Bill set short deadlines for the decisions that councils would have to make. In the case of the Kaipara District Council:
(a)It would have to resolve by 6 September 2024 either to retain or to disestablish its Māori ward.
(b)If it decided to disestablish its Māori ward, the Council’s representation arrangements for the 2025 election would then need to be set. The Council would have to undertake a “shortened representation review”,2 the first step in which would be to decide, by 13 September 2024, on its initial proposal for the shortened representation review.
[13] The Chief Executive of the Kaipara District Council, Mr Marris, decided that the Council should be prepared for all possibilities should the Amendment Bill be passed with these deadlines. The process with the most urgent deadline would arise if the Council decided to disestablish its Māori ward, as it would then have to decide on its initial proposal for the shortened representation review by 13 September 2024. By comparison, the process of developing and agreeing an initial proposal for a representation review had taken the Council more than three months in 2018 and more than eight months in 2021. The Bill allowed significantly less time.
[14] On 25 July 2024 (before the Amendment Bill was passed), Mr Marris contacted the Council’s electoral officer, Mr Ofsoske, and asked him to prepare a timeline for a shortened representation review in case that was required. Mr Marris and Mr Ofsoske developed a timeline under which an initial proposal could be decided by 13 September 2024 if a decision on retention or disestablishment of the Māori ward was made on 7 August 2024.
2 The Amendment Bill said that a local authority could, if certain requirements were met, determine that its representation arrangements would be set simply by reverting to its pre-2020 arrangements. On 26 June 2024, the Local Government Commission advised the Kaipara District Council that it did not meet the requirements and therefore would have to undertake a shortened representation review.
[15] On 29 July 2024, Mr Marris briefed the Mayor and Deputy Mayor on the approach that might need to be taken were the Amendment Bill to be passed.
[16] The next day, 30 July 2024, the Amendment Bill was enacted as the Local Government (Electoral Legislation and Māori Wards and Māori Constituencies) Amendment Act 2024 (the Amendment Act). Its key provision for present purposes is s 17, which came into force on 31 July 2024.3
[17] Section 17 inserted a new pt 3 into Sch 1 of the Local Electoral Act. The new pt 3 retained the deadlines from the Amendment Bill. Clause 11(2) required a “group
1 local authority” (which included the Kaipara District Council) to resolve by 6 September 2024 to either retain or disestablish its Māori ward. If the Council decided to disestablish its Māori ward, the Council would have to decide on its initial proposal for the shortened representation review by 13 September 2024. If the Council resolved to retain its Māori ward, it would be required by cl 39 to conduct a binding poll at the 2025 election on whether to continue the Māori ward.
[18] I interpolate that the “shortened” representation review (if that were required) would have the same substantive requirements as a standard representation review under the Local Electoral Act. The review would be “shortened” only in the sense that the timeframes for compliance would be compressed.
[19] On 31 July 2024, Mr Marris briefed the councillors on the timeframes under the Act. He indicated that the Mayor of the Council, Mr Jepson, would requisition an extraordinary meeting. The Māori ward councillor, Councillor Paniora, expressed disagreement and dismay about the timeframe and lack of consultation with iwi.
[20] The next day, 1 August 2024, the Mayor requisitioned an extraordinary meeting of Council on 7 August 2024. Councillors were expected to be available for a meeting that day, as there was already a Council briefing session (though not a formal meeting) scheduled for that day.
3 Local Government (Electoral Legislation and Māori Wards and Māori Constituencies) Amendment Act 2024, s 2(3).
[21] The Mayor’s requisition said the sole agenda item was to decide whether to disestablish or retain the Māori ward. The requisition referred to the timeframes in the Amendment Act, including that if Council decided to disestablish its Māori ward it would have to decide its initial proposal for the shortened representation review by 13 September 2024.
Engagement with iwi in advance of extraordinary meeting
[22] Clause 12 of the new pt 3 of Sch 1 of the Local Electoral Act provided that the special consultative procedure (a prescribed form of consultation in the Local Government Act 2002) did not apply to the decision whether to retain or disestablish the Māori ward. The Amendment Act was otherwise silent as to the process that had to be used, in particular a Council’s consultative or engagement obligations, in respect of the decision.
[23] Mr Marris was of the view that the normal requirements in pt 6 of the Local Government Act would apply to the decision. As I explain later in this judgment, pt 6 confers a discretion on councils as to the level of community engagement over a decision, and one form of engagement is consultation.
[24] Mr Marris concluded there was no requirement to consult with the community, including Māori. In part this was because he considered there was no time to do so without jeopardising a proper representation review (should that be required).
[25] Mr Marris also considered there was no requirement to engage with the community in general. However, he did decide to engage with Kaipara iwi to give them an opportunity to make their views known to Council before the decision was made. He sent emails to representatives of Te Roroa, Te Kuihi and Te Uri o Hau on 1 August 2024 advising them of the extraordinary meeting on 7 August 2024 and inviting them to express their views on the retention or disestablishment of the Māori ward (either in advance of or at the meeting). Mr Marris overlooked sending such an email to the applicant. He realised his oversight and corrected it by emailing the applicant on 5 August 2024. By then the applicant had been told by Councillor Paniora (on 2 August 2024) of the extraordinary meeting.
[26] Later in this judgment I will explain in more detail the interaction that followed between the three iwi, the applicant and Mr Marris. In short, there were requests to delay the meeting and for consultation. The chair of Te Uri o Hau Settlement Trust, Mr Skipper, attended and spoke at the extraordinary meeting, but no other representative from iwi or the applicant attended.
This proceeding is commenced
[27] The applicant filed and served this proceeding shortly before the extraordinary meeting commenced on 7 August 2024. The applicant claimed that the Council had breached its obligations in ss 81 and 82 of the Local Government Act. In respect of s 81, the applicant claimed that the Council “failed to undertake the necessary statutory precondition of establishing and maintaining processes to provide opportunities for Māori to contribute to the Council’s decision-making processes (and providing the relevant information to them for this purpose) on whether to retain or disestablish the Māori ward” before holding the extraordinary meeting. In respect of s 82, the applicant claimed that the Council had failed to properly consult with the applicant and with Te Uri o Hau, Te Roroa and Te Kuihi before determining whether to retain or disestablish the Māori ward. The applicant sought a declaration to that effect and such other relief that the Court considered appropriate. The applicant did not apply for an injunction to prevent the Council from making its decision on the Māori ward.
The extraordinary meeting
[28] The extraordinary meeting attracted considerable public attention. There were protests outside the meeting venue and some disruption inside the venue during the course of the meeting.
[29] There was a public forum at the meeting at which seven people spoke (including Mr Skipper). Mr Marris presented letters from Te Uri o Hau, Te Roroa and the applicant on the Māori ward item. The Mayor then moved that the Council disestablish its Māori ward. After some debate, Councillor Paniora moved an amendment that “the decision be postponed until iwi and hapū have been consulted as per the legal obligation of section 81 of the Local Government Act 2002”. The amendment was lost by six votes to four.
[30] There was then further debate on the Mayor’s motion. It was put and carried by six votes to three, with one abstention.
The application for judicial review (and an application to amend)
[31] As noted, when the applicant began this proceeding it claimed that the Council had breached its obligations in ss 81 and 82 of the Local Government Act.
[32] This Court promptly scheduled a hearing of the judicial review application. Subsequently, on 19 August 2024, the applicant applied for leave to file an amended statement of claim. Among other things, the applicant proposed:
(a)to expand its claim by pleading that the Council had failed to comply “with Part 6 of the Local Government Act 2002 including ss 81 and 82”; and
(b)to amend the prayer for relief by seeking an order setting aside the Council resolution to disestablish its Māori ward.
[33] The Council opposed an amendment. It said the proposed amendment would broaden the cause of action on which the Council’s decision-making was challenged to include wider breaches of pt 6 of the Local Government Act, rather than being limited to ss 81 and 82. The applicant then filed a memorandum stating:
There is no new cause of action added by referring to Part 6 of the LGA [Local Government Act] in the amended statement of claim (Respondent’s Memorandum, paragraph 12). Te Rūnanga o Ngāti Whātua continues to rely on the allegations of breach of sections 81 and 82. The reference to Part 6 clarifies that those sections must be interpreted within their wider statutory context of the other provisions of Part 6 as well as sections 4, 10, and 11 of the LGA. That is all that was intended by the change so counsel will withdraw that amendment to the statement of claim.
[34] Tahana J determined the application to amend on 21 August 2024. Her Honour noted the concession made by the applicant as to the allegations of breach of pt 6 of the Local Government Act. On the issue that remained, her Honour granted the applicant leave to amend the prayer for relief.
[35] The applicant then filed its amended statement of claim. In accordance with the concession it had made, the amended claim limited the alleged breaches of the Local Government Act to ss 81 and 82.
[36] I have referred to the history of the amendment because the Council said that the applicants’ written submissions (filed, in accordance with the agreed timetable, just a few days before the hearing) argued that the Council had, in addition to breaching ss 81 and 82, breached ss 76AA, 79 and 80 and breached a common law obligation of consultation arising from a legitimate expectation. The Council said none of those matters had been pleaded and I should not consider them.
[37] I accept that at times the applicant’s submissions suggested that there had been breaches of provisions of the Local Government Act other than ss 81 and 82. But the applicant did not pursue these as independent causes of action, and I deal with them (to the extent it is necessary to do so) when addressing the allegations of breach of ss 81 and 82.
[38] In a different category was the applicant’s argument that the Council had a common law obligation to consult created by a legitimate expectation. This became an important part of the applicant’s argument and was independent of any argument that an obligation of consultation arose from s 81 or s 82. It should have been pleaded but was not. However, for reasons that will become apparent, I consider that the Council was not prejudiced by the applicant’s failure to plead. I will therefore address the claim of a legitimate expectation of consultation.
Overview of law governing decision-making by local authorities
[39] Before identifying the issues that I have to decide, it will be helpful to provide an overview of the law governing decision-making by local authorities. The law is found primarily in pt 6 of the Local Government Act, but also in the common law. The Amendment Act modified the application of this law to decisions whether to retain or disestablish Māori wards.
Part 6 of the Local Government Act
[40]Among other things, pt 6 of the Local Government Act:4
(a)sets out obligations of local authorities in relation to the making of decisions;
(b)states the obligations of local authorities in relation to the involvement of Māori in decision-making processes; and
(c)states the obligations of local authorities in relation to consultation with interested and affected persons.
[41]Section 76 is a key provision. Relevantly, it provides:
76 Decision-making
(1)Every decision made by a local authority must be made in accordance with such of the provisions of sections 77, 78, 80, 81, and 82 as are applicable.
(2)Subsection (1) is subject, in relation to compliance with sections 77 and 78, to the judgments made by the local authority under section 79.
(3)A local authority—
(a)must ensure that, subject to subsection (2), its decision- making processes promote compliance with subsection (1); and
(b)in the case of a significant decision, must ensure, before the decision is made, that subsection (1) has been appropriately observed.
…
[42] The Court of Appeal has recently, in Thorndon Quay Collective Inc v Wellington City Council,5 clarified the interpretation of s 76, and in particular the relationship between s 76(1) and s 76(3):
4 Local Government Act 2002, s 75(a)-(c).
5 Thorndon Quay Collective Inc v Wellington City Council [2024] NZCA 316 at [43]–[45].
(a)Section 76(1) imposes what the Court called a substantive obligation. It is unequivocal in requiring that every decision must be made in accordance with such of the provisions of ss 77, 78, 80, 81, and 82 as are applicable (albeit that s 76(2) confers, through s 79, a broad discretion as to how to best comply with ss 77 and 78).
(b)Section 76(3) imposes two additional procedural requirements. First, s 76(3)(a) provides that a local authority must ensure its decision-making processes promote compliance with the requirements in s 76(1). Secondly, in relation to any “significant” decision, a local authority must ensure, before the decision is made, that s 76(1) has been appropriately observed.
[43] “Significant” is defined in s 5 as meaning, in relation to any decision, that the decision “has a high degree of significance”. “Significance” is defined in s 5 as meaning “the degree of importance of the … decision … as assessed by the local authority” in terms of its likely impact on various matters and persons.
[44] Section 76(1) requires compliance with five sections in pt 6. Two of them, ss 77 and 80, are not directly relevant to this proceeding. The other three sections are relevant, as is s 79, as it confers a discretion on local authorities.
[45]Section 78 provides:
78Community views in relation to decisions
(1)A local authority must, in the course of its decision-making process in relation to a matter, give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter.
(2)[Repealed]
(3)A local authority is not required by this section alone to undertake any consultation process or procedure.
(4)This section is subject to section 79.
[46] As the Court of Appeal observed in Wellington City Council v Minotaur Custodians Ltd,6 s 78(3) makes it clear that s 78 itself does not create an obligation on a local authority to consult, and s 78(4) restates that the section is subject to the “wide implementation discretion” in s 79.
[47]Section 79 is another key provision. Relevantly, it provides:
79Compliance with procedures in relation to decisions
(1)It is the responsibility of a local authority to make, in its discretion, judgments—
(a)about how to achieve compliance with sections 77 and 78 that is largely in proportion to the significance of the matters affected by the decision as determined in accordance with the policy under section 76AA; and
(b)about, in particular,—
(i)the extent to which different options are to be identified and assessed; and
(ii)the degree to which benefits and costs are to be quantified; and
(iii)the extent and detail of the information to be considered; and
(iv)the extent and nature of any written record to be kept of the manner in which it has complied with those sections.
(2)In making judgments under subsection (1), a local authority must have regard to the significance of all relevant matters and, in addition, to—
(a)the principles set out in section 14; and
(b)the extent of the local authority’s resources; and
(c)the extent to which the nature of a decision, or the circumstances in which a decision is taken, allow the local authority scope and opportunity to consider a range of options or the views and preferences of other persons.
…
6 Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464 at [36].
[48] Section 79(1) confers a discretion on local authorities to make judgments about how to achieve compliance with ss 77 and 78 in proportion to the “significance” of the matters affected by the decision. As noted earlier, s 5 defines “significance” by reference to degree of importance of a decision “as assessed by the local authority”. For the purposes of s 79(1), significance is to be determined “in accordance with the policy under s 76AA”. Section 76AA says that every local authority must adopt a significance and engagement policy (SEP). The SEP must set out the local authority’s general approach to determining the significance of proposals and decisions and how the local authority will engage with communities on decisions. The purpose of an SEP includes enabling the local authorities and its communities to identify the degree of significance attached to particular issues and decisions, and informing the local authority about the extent of any public engagement that is expected before a decision is made and the required form or type of such engagement.
[49] The next relevant provision with which s 76(1) requires compliance is s 81. This provides:
81Contributions to decision-making processes by Māori
(1)A local authority must—
(a)establish and maintain processes to provide opportunities for Māori to contribute to the decision-making processes of the local authority; and
(b)consider ways in which it may foster the development of Māori capacity to contribute to the decision-making processes of the local authority; and
(c)provide relevant information to Māori for the purposes of paragraphs (a) and (b).
(2)A local authority, in exercising its responsibility to make judgments about the manner in which subsection (1) is to be complied with, must have regard to—
(a)the role of the local authority, as set out in section 11; and
(b)such other matters as the local authority considers on reasonable grounds to be relevant to those judgments.
[50] In contrast to s 78 (and s 77), s 81 is not subject to the discretion in s 79. However, s 81(2) does state that it is for the local authority to make judgments about the manner in which to comply with s 81(1).
[51] Section 82 sets out principles of consultation, but confers a discretion on a local authority as to how to observe the principles:
82Principles of consultation
(1)Consultation that a local authority undertakes in relation to any decision or other matter must be undertaken, subject to subsections
(3) to (5), in accordance with the following principles:
(a)that persons who will or may be affected by, or have an interest in, the decision or matter should be provided by the local authority with reasonable access to relevant information in a manner and format that is appropriate to the preferences and needs of those persons:
(b)that persons who will or may be affected by, or have an interest in, the decision or matter should be encouraged by the local authority to present their views to the local authority:
(c)that persons who are invited or encouraged to present their views to the local authority should be given clear information by the local authority concerning the purpose of the consultation and the scope of the decisions to be taken following the consideration of views presented:
(d)that persons who wish to have their views on the decision or matter considered by the local authority should be provided by the local authority with a reasonable opportunity to present those views to the local authority in a manner and format that is appropriate to the preferences and needs of those persons:
(e)that the views presented to the local authority should be received by the local authority with an open mind and should be given by the local authority, in making a decision, due consideration:
(f)that persons who present views to the local authority should have access to a clear record or description of relevant decisions made by the local authority and explanatory material relating to the decisions, which may include, for example, reports relating to the matter that were considered before the decisions were made.
(2)A local authority must ensure that it has in place processes for consulting with Māori in accordance with subsection (1).
(3)The principles set out in subsection (1) are, subject to subsections (4) and (5), to be observed by a local authority in such manner as the local
authority considers, in its discretion, to be appropriate in any particular instance.
(4)A local authority must, in exercising its discretion under subsection (3), have regard to—
(a)the requirements of section 78; and
(b)the extent to which the current views and preferences of persons who will or may be affected by, or have an interest in, the decision or matter are known to the local authority; and
(c)the nature and significance of the decision or matter, including its likely impact from the perspective of the persons who will or may be affected by, or have an interest in, the decision or matter; and
(d)the provisions of Part 1 of the Local Government Official Information and Meetings Act 1987 (which Part, among other things, sets out the circumstances in which there is good reason for withholding local authority information); and
(e)the costs and benefits of any consultation process or procedure.
…
[52] Part 6 also provides, in s 83, for a special consultative procedure. The special consultative procedure only has to be used where the Local Government Act or any other enactment requires its use.
Part 6 does not impose a duty to consult
[53] In Minotaur, the Court of Appeal said that the effect of s 82 was that “when a council does choose to consult” certain principles apply to the form of consultation that the council adopts.7 The Court described subs (3) as a “counterweight”, as it “restates … that the ‘how’ of compliance with these guidelines is a matter for the local authority”.8
[54] Further, the Court of Appeal held that pt 6 does not impose any specific duty to consult. The Court said:
[42] In summary, Part 6 of the LGA carefully and repeatedly rejects the idea that there is to be found in its provisions any duty to consult with affected
7 At [38].
8 At [39].
or interested parties. Instead, local authorities are given a deliberately broad discretion as to whether to consult, and, if so, how. That does not mean, however, that there are no limits on a council’s discretion. Like all statutory decisions, consultation decisions must be rational and consistent with the objects of the LGA and the particular controlling provisions.
Circumstances in which a common law duty to consult might arise
[55] The Court of Appeal in Minotaur also addressed whether there could be a common law duty to consult arising independently of the Local Government Act. It said a common law duty to consult had been found in Pascoe Properties Ltd v Nelson City Council,9 which the Court described as “one founded in legitimate expectation arising from its unique facts”.10 The Court concluded:
[48] Because the clear intention of Part 6 is to give councils a wide discretion in this field, it will always be difficult to establish a concurrent common law duty to consult except in truly exceptional cases such as Pascoe.
…
[56] A legitimate expectation of consultation may arise where there is a promise of consultation or the adoption of a settled practice or policy of consultation.11 The Court of Appeal has said that where the expectation is said to arise from a settled practice or policy (rather than a promise):12
… its existence and content must equally be established to the level of a commitment or undertaking. The existence and content of such a practice or policy must be both unambiguous, and settled in the sense that it is regular and well established.
[57] Even where a legitimate expectation has arisen, a claimant can sue for breach of it only if they show reasonable reliance on the promise or the settled practice or policy. If reliance is shown, there will then be a question as to the appropriate remedy, if any, that should be granted.13
9 Pascoe Properties Ltd v Nelson City Council [2012] NZRMA 232 (HC).
10 Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464 at [46].
11 Nicholls v Health and Disability Commissioner [1997] NZAR 351 (HC) at 369–370; Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [123]; Green v Racing Integrity Unit Ltd [2014] NZCA 133, [2014] NZAR 623 at [13].
12 Green v Racing Integrity Unit Ltd [2014] NZCA 133, [2014] NZAR 623 at [14].
13 Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [126]– [127]; Green v Racing Integrity Unit Ltd [2014] NZCA 133, [2014] NZAR 623 at [13].
Modification of the above rules by the Amendment Act
[58] The Amendment Act made one modification to the law that I have outlined. It provided that a local authority was not required to use or adopt the special consultative procedure under s 83 of the Local Government Act in respect of the decision whether to retain or disestablish a Māori ward. It follows that the law that I have outlined otherwise applied to such a decision.
Issues
[59]The following broad issues arise:
(a)Did the Council breach s 81?
(b)Did the Council breach s 82?
(c)Did the Council have a common law obligation to consult created by a legitimate expectation?
Did the Council breach s 81?
[60] The applicant claimed that the Council breached s 81(1)(a) by failing to establish and maintain processes to provide opportunities for Māori to contribute to the Council’s decision-making processes on whether to retain or disestablish its Māori ward, and breached s 81(1)(c) by failing to provide relevant information to Māori for that purpose. The applicant pleaded that compliance with s 81 was a “necessary statutory precondition” to the Council’s decision to disestablish the Māori ward.
[61] Ms Chen, counsel for the applicant, developed this part of the claim by submitting that one way in which the Council breached s 81(1)(a) was by failing to consult with local iwi and hapū on the decision whether to retain or disestablish the Māori ward. Alternatively, she submitted that the Council otherwise breached s 81(1)(a) because, prior to making its decision on the Māori ward, it had terminated all the processes that it had previously instituted to provide opportunities for Māori to contribute to the Council’s decision-making processes.
[62] The Council said that s 81(1)(a) did not impose a duty to consult with Māori, that s 81 was concerned only with process and was not engaged when there was a challenge to a specific decision, and in any event that there had been no breach of s 81.
[63]Four sub-issues arise:
(a)Does s 81(1)(a) impose a duty to consult with Māori?
(b)Is s 81 engaged when there is a challenge to a specific decision?
(c)Did the Council breach s 81(1)(a)?
(d)Did the Council breach s 81(1)(c)?
Does s 81(1)(a) impose a duty to consult with Māori?
[64] As with any legislation, the meaning of s 81(1)(a) must be ascertained from its text and in the light of its purpose and its context.
[65] Section 81(1)(a) requires a local authority to establish and maintain processes that provide “opportunities” for Māori to “contribute” to the decision-making processes of the local authority. These are general terms. The provision does not use the more specific term “consult”. This is in contrast to s 82(2), which requires a local authority to “ensure that it has in place processes for consulting with Māori” in accordance with s 82(1). This is a strong indication that s 81(1)(a) does not impose a duty to consult.
[66] Section 81(2) says that the manner in which a local authority complies with s 81(1) is a matter for the local authority’s judgment. While s 81 is not subject to s 79, s 81(2) nonetheless indicates that s 81 is not prescriptive as to the way in which a local authority’s processes may provide opportunities for Māori to contribute to the local authority’s decision-making processes. Consultation with Māori may be one way – but is not the only way – in which a local authority may provide such opportunities.
[67] Section 81(2) also says that a local authority, in making judgments about how to comply with s 81(1), must have regard to the role of the local authority, as set out in s 11. Relevantly, s 11 says that the role of a local authority is to give effect to the purpose of local government stated in s 10. That purpose is:
(a)to enable democratic local decision-making and action by, and on behalf of, communities; and
(b)to promote the social, economic, environmental, and cultural well- being of communities in the present and for the future.
[68] I agree with Mr McNamara, counsel for the Council, that ss 10 and 11 are expressed at a high level. They do not indicate that the general terms of s 81(1) impose a duty to consult.
[69]Part of the context of s 81(1)(a) is s 4, which provides:
4 Treaty of Waitangi
In order to recognise and respect the Crown’s responsibility to take appropriate account of the principles of the Treaty of Waitangi and to maintain and improve opportunities for Māori to contribute to local government decision-making processes, Parts 2 and 6 provide principles and requirements for local authorities that are intended to facilitate participation by Māori in local authority decision-making processes.
[70]Section 4 conveys that pt 6 (which includes s 81(1)(a)) was enacted:
(a)In order to recognise and respect the Crown’s responsibility to take appropriate account of the principles of the Treaty of Waitangi. This does not indicate that a local authority has a duty to consult under pt 6.
(b)In order to maintain and improve opportunities for Māori to contribute to local government decision-making processes. This does not add anything to s 81(1)(a), which uses very similar language.
(c)With the intention of facilitating participation by Māori in local authority decision-making processes. That intention is evident from the terms of s 81(1)(a) itself, so in this respect s 4 does not add anything.
[71] In my view, s 81(1)(a) does not impose a duty to consult with Māori. This view is consistent with the Court of Appeal’s conclusion in Minotaur that pt 6 repeatedly rejects the idea of a duty to consult, instead giving local authorities a discretion whether to consult.14 I acknowledge that the Court of Appeal did not address s 81. However, given the Court’s conclusion on the other provisions of pt 6, it would be surprising if the general language used in s 81(1)(a) imposed a duty to consult.
Is s 81 engaged when there is a challenge to a specific decision?
[72] Mr McNamara noted that the text of s 81 is focussed on a local authority’s decision-making processes rather than on decisions. Section 81(1)(a) requires a local authority to establish and maintain processes that will provide opportunities for Māori to contribute to the “decision-making processes” of the local authority. Section 81(1)(b) requires a local authority to consider ways in which it may foster the development of Māori capacity to contribute to the “decision-making processes” of the local authority. The heading to s 81 is “Contributions to decision-making processes by Māori”.
[73] Mr McNamara therefore submitted that s 81 does not apply at the level of individual council decisions. He said the section is simply not engaged in the context of a challenge to a council’s engagement in relation to a specific decision.
[74] I do not accept that submission. Section 76(1) says that every decision made by a local authority must be made in accordance with “such of the provisions of sections 77, 78, 80, 81, and 82 as are applicable”. That s 81 is focussed on decision- making processes does not mean that s 81 is not, through s 76(1), of universal application to local authority decisions. In Thorndon Quay, the Court of Appeal held that the process requirement in s 76(3)(a) applies to all local authority decisions.15 If Mr McNamara’s submission were correct, there would have been no point in s 76(1) referring to s 81 at all.
14 Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464 at [42].
15 Thorndon Quay Collective Inc v Wellington City Council [2024] NZCA 316 at [45](a).
[75] I note also that, of the sections with which s 76(1) demands compliance, s 81 is not alone in referring to decision-making processes. Section 77(1) sets out what a local authority must do “in the course of the decision-making process”. Section 78(1) says a local authority must consider community views “in the course of its decision-making process”. Decision-making processes typically end with decisions.
[76] That said, I acknowledge that the requirements of s 81 are further removed from a decision than the requirements of ss 77 and 78. Sections 77 and 78 impose requirements on a process (singular) in respect of “a decision” or “a matter” respectively. Section 81 imposes requirements to establish and maintain processes that will then provide opportunities for Māori to contribute to the local authority’s decision-making processes (plural). This means that the interaction between ss 76(1) and s 81 may not be straightforward. For example, if there has been non-compliance with s 81 the non-compliance may have had little or no effect on the ultimate decision.
[77] Such difficulties might be mediated through the provisions of s 76(1) (“in accordance with” and “as are applicable”), or through the court’s remedial discretion, or in some other way. I need not explore this further because, as I shall now go on to explain, in my view the Council did not breach s 81.
Did the Council breach s 81(1)(a)?
[78] I have rejected the applicant’s submission that s 81(1)(a) imposed a duty on the Council to consult with Māori before making its decision on the Māori ward. I now turn to the applicant’s claim that the Council otherwise failed to establish and maintain processes to provide opportunities for Māori to contribute to the decision-making processes of the Council.
[79] Mr Marris deposed to the processes that the Council says it has in place to provide opportunities for Māori to contribute to the Council’s decision-making processes. In summary, Mr Marris said:
(a)The Council operates under two formal agreements with mana whenua. It has a Mana Enhancing Agreement with Te Roroa (MEA) and a Memorandum of Understanding with Te Uri o Hau (MOU). These set
out (at a fairly high level) the values and principles applying to the relationships the Council has with those parties.
(b)Mr Marris has, as chief executive of the Council, monthly meetings scheduled with representatives of Te Kuihi, Te Roroa and Te Uri o Hau to discuss matters of interest to or affecting mana whenua.
(c)There is a mana whenua quarterly hui. This is an operational meeting of iwi and Council senior staff with a formal agenda. It provides information about key upcoming Council decisions or work programmes and allows iwi to give feedback.
(d)Mr Marris is a member of the quarterly Iwi and Local Government Chief Executives Forum (ILGACE) Hui and presents a Kaipara District Council item to each meeting. This provides information to Māori on the Council’s work.
(e)The Council is party to the Whanaungatanga Ki Taurangi relationship agreement between the Northland Mayoral and Chair forum and Te Kahu O Taonui (Northland Iwi chairs forum).
(f)There are mana whenua representatives on some Council committees.
(g)The Council allows iwi and hapū to have input into resource consent and plan development processes. On some specific issues, such as the adoption of the long-term plan, the Council carries out informal engagement sessions with Māori in advance of formal community consultation.
(h)The Council has a Māori ward, with a councillor at the highest level of Council decision-making. Although the Council has now resolved to disestablish its Māori ward, Councillor Paniora played an active role in the meeting at which the decision was made.
[80] That the Council regards these matters as ways in which it achieves compliance with s 81 is consistent with the Council’s Long-Term Plan and its SEP. Both documents refer to the MEA and the MOU. The Long-Term Plan for 2024–2027 also refers to the Māori ward, to iwi and hapū input into resource management processes, to the mana whenua quarterly hui, to ILGACE and to the Whanaungatanga Ki Taurangi relationship agreement.
[81] Ms Chen submitted that most of the processes to which Mr Marris referred did not provide an opportunity for Māori to contribute to the Council’s decision-making process on the Māori ward. This, she said, was for one of two broad reasons.
[82] First, Ms Chen submitted many of the processes were irrelevant to the decision whether to retain or disestablish the Māori ward. I accept this. The Council committees on which there are mana whenua representatives are very specific (relating, for example, to particular reserves). Resource consent processes would not address the Māori ward question. Nor was there any suggestion that the decision on the Māori ward would be addressed at a mana whenua quarterly hui (which deals with operational matters) or at an ILGACE hui. (To be clear, Mr Marris and the Council did not suggest otherwise. In response to a broad allegation of breach of s 81, it is understandable that they wished to provide a full picture of how the Council seeks to comply with s 81.)
[83] Secondly, Ms Chen emphasised that the Mayor had written to each of Te Uri o Hau (on 5 April 2024) and Te Roroa (on 25 July 2024) saying that the MOU and MEA were each “out of date and overdue for review” and that he was going to ask the Council “to formally terminate” each agreement. In each letter, the Mayor said that the Council’s bulk funding obligation in each agreement would be honoured until 30 June 2024, but that the Council would require separate invoicing thereafter. It is apparent from the applicant’s affidavits that each of Te Uri o Hau and Te Roroa understood these letters to amount to the Council terminating the MOU and MEA.
[84] In response, Mr McNamara said that the letters did not terminate either the MOU or the MEA. In each letter the Mayor merely said he would be asking the Council to formally terminate. The Council had not yet formally terminated either
agreement. Mr McNamara characterised the letters as the Council merely indicating that it wished to review the MOU and MEA.
[85] I consider that any reasonable recipient of the letters would have regarded them as a clear indication that the Council no longer saw itself as bound by the MOU and MEA. After all, the Mayor made it plain that the Council would not honour the bulk funding obligations in the agreements beyond 30 June 2024. They only way in which the Council could (lawfully) take that position was if the agreements had come to an end.
[86] I accept, therefore, that from the dates those letters were received, the MOU and MEA in themselves did not constitute processes by which the Council was complying with its obligations under s 81(1)(a).
[87] All this, however, is not the end of the matter. It is one thing to identify processes that were irrelevant to the Māori ward decision or agreements that had effectively come to an end. But the Council maintained other processes (independently of the MEA and MOU and irrespective of them having come to an end) that provided opportunities for Māori to contribute to the Council’s decision-making processes on the Māori ward question.
[88] Mr Marris deposed that at his regular monthly meetings with representatives of Te Kuihi, Te Roroa and Te Uri o Hau he told them that the Amendment Bill would mean that the Council would have to make a decision on whether to retain or disestablish the Māori ward relatively urgently once it was enacted. He said he explained the options available to the Council and the short timeframes. He acknowledged that in these meetings he indicated that the decision was likely to be made at a Council meeting scheduled for 28 August 2024 (rather than, as it turned out, 7 August 2024).
[89] The discussions at those monthly meetings were important. The Council was making it clear to mana whenua what options were available to the Council and that there would be a short timeframe for a decision. This maintained the opportunity for
Māori to contribute to the Council’s decision-making process on the issue because it allowed them to be prepared to contribute once the Amendment Bill was enacted.
[90] These monthly meetings did not occur in a vacuum. The Government’s proposal to reverse the 2021 amendment to the Local Electoral Act was of great concern to Māori and iwi (and others) throughout the country. It was the subject of an urgent inquiry by the Waitangi Tribunal. The Tribunal reported on that inquiry on 17 May 2024.16 The applicant was listed as the first interested party to that inquiry. The applicant made a submission to the Justice Select Committee strongly opposing the proposal in the Amendment Bill for local authorities to disestablish Māori wards.
[91] These discussions at the monthly meetings were specific to Māori. Mr Marris did not have similar discussions with any other members of the Kaipara community.
[92] On 1 August 2024, the Mayor requisitioned an extraordinary meeting for 7 August 2024 to decide whether to retain or disestablish the Māori ward. Mr Marris advised Te Kuihi, Te Roroa and Te Uri o Hau of that meeting on the morning of 1 August 2024, 20 minutes after councillors were advised of it. On the evening of 1 August 2024, Mr Marris emailed Te Kuihi, Te Roroa and Te Uri o Hau, asking them for their views on the retention or disestablishment of the Māori ward. Mr Marris said he could pass their views on to Council or they could make a presentation in the public section of the meeting. Mr Marris also emailed the agenda (and relevant supporting information) directly to Te Kuihi, Te Roroa and Te Uri o Hau as soon as it became available on 3 August 2024.
[93] Mr Marris’s emails to Te Kuihi, Te Roroa and Te Uri o Hau were, again, specific to those groups. The general public was not alerted to the scheduling of the meeting until the agenda for the meeting was posted on the Council’s website on 3 August 2024. Mr Marris did not email the agenda to other sections of the community.
16 Waitangi Tribunal The Māori Wards and Constituencies Urgent Inquiry Report (Wai 3365, 2024).
[94] By oversight, Mr Marris did not email the applicant about the meeting until 5 August 2024. This was of no moment. Councillor Paniora is a senior manager at the applicant. She told the applicant on 2 August 2024 about the extraordinary meeting.
[95] In addition to the processes that Mr Marris maintained, the Council continued to have a Māori ward councillor. This was an important way in which the Council maintained opportunities for Māori to contribute to its decision-making processes. On the Māori ward decision, Councillor Paniora was able to make contributions on behalf of Māori (and she did). That the Council chose to disestablish its Māori ward may have implications for its compliance with s 81 after the 2025 election. But it still had a Māori ward when the impugned decision was made, and this cannot be ignored in assessing the Council’s compliance with s 81.
[96]I conclude, for the above reasons, that the Council did not breach s 81(1)(a).
Did the Council breach s 81(1)(c)?
[97] Ms Chen touched on this question only briefly in her submissions. She said that s 81(1)(c) had been breached because the Council provided no information on how it would ensure Māori would have opportunities to contribute to the Council’s decision-making processes if the Māori ward were disestablished.
[98] If the Council has any obligation under s 81(1)(c) to provide this information, it has plenty of time yet to discharge the obligation, as the Māori ward continues until the 2025 election. I conclude that the Council did not breach s 81(1)(c).
Did the Council breach s 82?
[99] The applicant pleaded that the Council was required to properly consult with the applicant, Te Uri o Hau, Te Roroa and Te Kuihi before determining whether to retain or disestablish the Māori ward. The applicant claimed that the Council failed to comply with the principles of consultation in s 82. Among other things, the applicant pleaded that the Council:
(a)did not give a reasonable opportunity to Māori to contribute to the Council’s decision-making process on whether to retain or disestablish the Māori ward;
(b)did not give adequate notice of the extraordinary meeting;
(c)scheduled the extraordinary meeting more than four weeks in advance of the statutory deadline of 6 September 2024 instead of delaying the meeting to allow an opportunity for consultation with Māori; and
(d)failed to take account of how Māori wanted to be consulted kanohi ki te kanohi (face to face).
[100] The applicant also pleaded that the applicant, Te Uri o Hau, Te Roroa and Te Kuihi needed “time to bring their uri together and get their views” before they could respond on their behalf and that that was “not optional”.
[101] The Council said it did not consult with Māori (or anyone else) before making the decision on the Māori ward, but did have limited engagement with Māori in the short time available. The Council said it was not obliged to consult with Māori (or anyone else). It said its decision not to consult but instead to engage with Māori was reasonable in the circumstances.
[102] In submissions, the applicant said that even if the Council had no duty to consult with Māori, the Council had decided to consult with Māori. Having done so, it was obliged to consult lawfully, and had not done so. Alternatively, the applicant submitted that if the Council had decided not to consult, its decision was irrational.
[103]Three sub-issues arise:
(a)Did the Council have a duty to consult with Māori?
(b)If the Council had no duty to consult with Māori, did it nonetheless decide to consult with Māori?
(c)Was the Council’s consultation decision irrational?
Did the Council have a duty to consult with Māori?
[104] The applicant’s pleadings did not clearly identify the basis on which the Council was said to have a duty to consult with Māori before determining whether to retain or disestablish the Māori ward. In submissions, the applicant said that the duty arose either under pt 6 of the Local Government Act or under common law principles of legitimate expectation.
[105] As I explained earlier, the Court of Appeal in Minotaur held that pt 6 does not impose a duty to consult with affected or interested parties. Instead, local authorities are given a discretion whether to consult (and, if so, how). The Court did not, I acknowledge, address whether pt 6 imposes a duty to consult with Māori. Ms Chen relied on two provisions in pt 6 that are specific to Māori. One was s 81. I have already held that, even when s 81 is interpreted in the context of s 4 (the Treaty provision), its general words do not impose a duty to consult. The other provision that Ms Chen relied on was s 82(2). This requires local authorities to have in place processes for consulting with Māori in accordance with s 82(1). Section 82(2) does not say that local authorities have a duty to consult with Māori. It merely requires local authorities to have consultation processes in place. Those processes will then be used in those circumstances where a local authority is obliged (on some other basis) to consult with Māori or decides to consult with Māori.
[106] I therefore reject the applicant’s submission that the Council had a duty under pt 6 to consult with Māori. I deal with the alternative submission (based on legitimate expectation) below.
Did the Council nonetheless decide to consult with Māori?
[107] Ms Chen’s alternative submission was that the Council had in any event decided to consult with Māori. She said the Council did so when Mr Marris advised Te Uri o Hau, Te Roroa and Te Kuihi of the extraordinary meeting and invited them to express their views on the retention or disestablishment of the Māori ward. Ms Chen submitted that, having decided to undertake consultation, the Council was
obliged to conduct the consultation in accordance with s 82, which she said it had failed to do.
[108] Mr McNamara submitted that the Council had not consulted with Te Uri o Hau, Te Roroa and Te Kuihi. He said the relevant starting point was s 78. This requires a local authority to give consideration to community views in relation to decisions, but does not of itself require consultation. He then referred me to the Council’s SEP. The SEP says that there are various levels of community “engagement” that a local authority may undertake in relation to a decision, of which consultation is only one. He submitted that the Council had decided to “engage” with Te Uri o Hau, Te Roroa and Te Kuihi by inviting their views, but that this was not a decision to consult.
[109] Mr Marris’s evidence was that he had considered there was no requirement to consult with the community, for two reasons. First, he considered the Māori ward decision was not “significant” in terms of the SEP. Secondly, he considered there was no time for community (including Māori) consultation without jeopardising a proper representation review (if the decision was to disestablish the Māori ward). Mr Marris prepared a report (with Mr Ofsoske) for the extraordinary meeting. This referred to the SEP and noted that the decision to establish the Māori ward in 2020 was not considered “significant”. The report also referred to the tight timeframes for decisions under the Amendment Act and said it had not been possible to undertake “public consultation” prior to the meeting. It said that although “wider consultation” had not occurred, the Council had “sought feedback” from iwi on the decision.
[110] The Local Government Act does not define “consult” or “consultation”. But the meaning of these concepts is evident from the principles of consultation set out in s 82(1). The central object of those principles is that those who may be affected by a decision should be able to “present their views” to the local authority. The Council’s SEP expresses the concept in slightly different language, saying that to consult is to “obtain feedback” from the community. The meaning is the same.
[111] In my view, the Council decided to consult with Māori. When Mr Marris emailed Te Uri o Hau, Te Roroa and Te Kuihi on 1 August 2024, he invited them to express their views on the retention or disestablishment of the Māori ward. His
report to Council said that the Council had “sought feedback” from iwi. In other words, the Council had consulted with iwi.
[112] The debate over whether the Council had decided to consult with Māori was, with respect, a rather arid one. The real issue, in my view, was whether the Council’s decision as to the form and timing of consultation was irrational. To that I now turn.
Was the Council’s consultation decision irrational?
[113] The applicant’s essential complaint was that the Council should have allowed more time for consultation with Māori.
[114] The requirement that local authorities undertake consultation in accordance with the principles in s 82(1) is subject to s 82(3)-(5). It is worth setting out subs (3) and (4) again:
(3)The principles set out in subsection (1) are, subject to subsections (4) and (5), to be observed by a local authority in such manner as the local authority considers, in its discretion, to be appropriate in any particular instance.
(4)A local authority must, in exercising its discretion under subsection (3), have regard to—
(a)the requirements of section 78; and
(b)the extent to which the current views and preferences of persons who will or may be affected by, or have an interest in, the decision or matter are known to the local authority; and
(c)the nature and significance of the decision or matter, including its likely impact from the perspective of the persons who will or may be affected by, or have an interest in, the decision or matter; and
(d)the provisions of Part 1 of the Local Government Official Information and Meetings Act 1987 (which Part, among other things, sets out the circumstances in which there is good reason for withholding local authority information); and
(e)the costs and benefits of any consultation process or procedure.
…
[115] The Council therefore had a discretion as to the manner in which it observed the principles in s 82(1). It had to exercise that discretion having regard to the factors set out in s 82(4). Section 82(4) does not say those factors are the only ones that a local authority can take into account. For example, a legislative deadline by which a decision has to be made would be a relevant consideration.
[116] On 1 August 2024, Mr Marris emailed Te Uri o Hau, Te Roroa and Te Kuihi inviting their views on a decision that was intended to be made by Council on 7 August 2024. Mr Marris said he would pass their views on to Council or that they could present to the Council meeting. In so doing, the Council decided to allow only a short time for consultation and to not provide for full consultation with each group (for example, it did not allow time for each group to have a hui and then a kanohi ki te kanohi meeting with Council). In the circumstances, I consider that the Council’s decision was not irrational.
[117] First, the Council could reliably assume that the views of Te Uri o Hau, Te Roroa, Te Kuihi and the applicant were that the Māori ward should be retained. Mana whenua had supported the establishment of the Māori ward in 2020. The applicant had made a submission to the Justice Select Committee on the Amendment Bill that was strongly in favour of retaining Māori wards.
[118] Secondly, the Council’s decision to have a short consultation period was informed by its understanding of the tight timeframes imposed by the Amendment Act. Its advice from Mr Ofsoske, who has considerable expertise and experience in electoral matters and in assisting local authorities with representation reviews, was that the Council should make its decision by 7 August 2024. This was so that, if the Council decided to disestablish its Māori ward, it would have time to decide its initial proposal for the shortened representation review by the deadline of 13 September 2024. This timing was also informed by Mr Marris’s prior experience of deciding initial proposals for representation reviews (three months in 2018 and more than eight months in 2021).
[119] The applicant said that the time constraints were not as significant as the Council had perceived. The applicant relied on opinion evidence from another expert
on local government electoral matters, Mr Beattie. Mr Beattie said that the options for representation arrangements in the Kaipara District for the 2025 election were “relatively straightforward”, that the work required for the Council to prepare an initial proposal for the shortened representation review had been overstated by the Council, and that in any case the work on the initial proposal could have been carried out in parallel with more extended consultation on the Māori ward decision.
[120] It is not necessary for me to resolve the debate between the two experts as to whether the work required for the initial proposal was straightforward. The question is not whether the Council was right to perceive that the work was more than straightforward. The question is whether the Council acted irrationally in relying on advice from Mr Ofsoske and Mr Marris as to the time that was likely required to determine the initial proposal. In my view, it was not irrational for the Council to rely on expert advice of this sort.
[121] Likewise, it is not necessary for me to decide whether the Council was right to consider that it could not carry out work on the initial proposal in parallel with more extended consultation on the Māori ward decision. Mr Marris said that he considered that if the Council started out work on the initial proposal before making a decision on the Māori ward, this would be seen as predetermination by the Council (work on the initial proposal being necessary only if the Council decided to disestablish the ward). This was a rational approach. As it happened, the applicant alleged that the preparatory work undertaken by Mr Ofsoske and Mr Marris meant that the Council had not maintained an open mind on the Māori ward decision (though this allegation was not pursued in submissions).
[122] Thirdly, Mr Marris had a rational basis for considering that there could not be full consultation (such as hui followed by kanohi ki te kanohi meetings) in the short time available. His past experience of such consultation with mana whenua was that it took between six weeks and four months.
[123] The Council made a further consultation decision at the extraordinary meeting on 7 August 2024, when Councillor Paniora’s proposal that the Māori ward decision
be postponed until iwi and hapū had been consulted was defeated. By the time this decision was made, there was additional information available to the Council:
(a)Te Roroa had initially (on 3 August 2024) told the Council that it would present at the extraordinary meeting. On 6 August 2024, however, Te Roroa wrote to the Council expressing disappointment that there had been no engagement on the proposal, seeking the opportunity to “formally consult” with the Council, and withdrawing its request to speak.
(b)Te Kuihi had said, on 5 August 2024, that they would be at the meeting but did not require a speaking slot. They said that the Council knew their “strong view on the removal of the ward” (namely, opposition to removal). They expressed disappointment that there had been “no formal or adequate consultation” and said they would have expected “a hui to discuss this in detail”.
(c)This proceeding had been served on the Council. In it, the applicant said that Te Uri o Hau, Te Roroa, Te Kuihi and the applicant “need time to bring their uri together and get their views before they can respond on their behalf. This is not optional on their part.” The applicant also said that the short notice period did not leave enough time “for Māori to consider the information, take advice on it, consult with their uri and make an informed response.”
(d)Mr Skipper of Te Uri o Hau had addressed the Council during the public forum part of the meeting. In that address he said his five-minute speaking slot was not consultation and urged the Council to come and talk to Te Uri o Hau.
(e)In response to a question from Councillor Howard, Mr Marris had advised the Council that if Councillor Paniora’s amendment was passed it would be extremely hard to complete an initial proposal by the statutory deadline.
[124] This additional information confirmed the position as it had appeared to the Council on 1 August 2024. In particular, mana whenua had made clear that they sought formal consultation, including time to bring their uri together to obtain their views before responding to the Council.
[125] The reply affidavits filed by the applicant said that mana whenua representatives could have met with the Council as early as 13 August 2024. The affidavits suggested that this was all that mana whenua were seeking in the way of consultation. But this position was never communicated to the Council before it made its consultation decision at the extraordinary meeting. Indeed, it is inconsistent with what mana whenua told Council in the lead up to the meeting.
[126] Whether the consultation decision made at the extraordinary meeting was irrational depends on the information available to the Council at that time. On that basis, I consider that the decision was not irrational.
[127] The applicant also pointed to evidence that other local authorities had not made their decisions on retention of disestablishment of the Māori ward until much closer to the statutory deadline. I did not find that evidence of assistance, as there was no evidence of the particular circumstances affecting those local authorities.
[128] Finally, Ms Chen submitted that the Council, in making its consultation decisions, failed to consider or give any weight to the principles of Te Tiriti o Waitangi. Further, she submitted that Te Tiriti upholds tikanga and the Council’s decisions were not in accordance with tikanga.
[129] Neither of these matters were pleaded, so I deal with them only briefly. As to Te Tiriti, I referred earlier to s 4 of the Local Government Act. This says that to recognise and respect the Crown’s responsibility to take appropriate account of the principles of Te Tiriti, pts 2 and 6 provide principles and requirements for local authorities that are intended to facilitate participation by Māori in local authority decision-making processes. It is sufficient, therefore, to consider whether a local authority has complied with pts 2 and 6 (interpreting the relevant provisions in the
context of s 4). Section 4 is not a vehicle for imposing additional consultation responsibilities on local authorities beyond those in pts 2 and 6.
[130] As to tikanga, not only was this not pleaded, the only evidence on tikanga came in by way of a “reply” affidavit filed by the applicant. This was not reply evidence and I decline to consider it.
Conclusion on s 82
[131]I conclude that the Council did not breach s 82.
Did the Council have a common law obligation to consult created by a legitimate expectation?
[132] The Council engaged in formal consultation with Te Uri o Hau and Te Roroa (but not with any other iwi or hapū or other sections of the community) when establishing the Māori ward in 2020. The consultation process took about four months.
[133] Ms Chen submitted that that past practice created a legitimate expectation that the Council would consult Te Uri o Hau, Te Roroa and local iwi and hapū on the decision whether to retain or disestablish the Māori ward. I disagree. As I explained earlier, the Court of Appeal has said that where an expectation is said to arise from a settled practice or policy:17
… its existence and content must equally be established to the level of a commitment or undertaking. The existence and content of such a practice or policy must be both unambiguous, and settled in the sense that it is regular and well established.
[134] The Council had consulted only 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. Even if such an expectation had arisen, it would have been qualified by the urgency created by the timeframes in the Amendment Act.
17 Green v Racing Integrity Unit Ltd [2014] NZCA 133, [2014] NZAR 623 at [14].
Result
[135]I decline the applicant’s judicial review application.
[136] If any issue as to costs arises, the parties may file and serve brief memoranda (of no more than three pages each, excluding relevant costs schedules or annexures).
Campbell J
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