As the law stands, councils that have voted to establish Māori wards can have that decision overturned by a public referendum. It’s time for the legislation to go, argues Florence Dean.

Aotearoa, we have a problem. A problem that lies in our local government legislation.

The Local Electoral Act 2001 currently allows voters to demand a binding poll if a council decides to create a Māori ward or constituency (the local government version of a Māori seat). The effect: voters in the electorate can squash their council’s decision to secure Māori representation. This law flies in the face of Te Tiriti o Waitangi, and, as Alice Webb-Liddall noted last year, acts as a barrier to Māori representation and participation in local government.

Nanaia Mahuta, minister of local government, has said she will prioritise repealing this law. Given that several councils are set to introduce a Māori ward for the next local body elections, the Labour government needs to act quickly to ensure that this binding referendum veto doesn’t stymie their decision.

Under the Local Electoral Act, a council can choose to include a Māori ward or constituency that allows residents on the Māori roll to directly elect representatives, much like we see in parliament. However, unlike these parliamentary seats, sections 19ZA-19ZC allow voters to veto the existence of such Māori wards.

Briefly, here’s how these provisions operate:

As a part of its six-yearly review of electoral representation, a council may decide to establish a Māori ward/constituency;

Voters in the district opposed to this decision are entitled to organise a petition, which, if signed by at least 5% of the local voting population, means the decision must go to a binding referendum;

Voters then get to vote for or against establishing a Māori ward/constituency;

If the majority vote in favour, the decision is confirmed. But, if the majority vote against, the decision is overturned and it’s another six years before the relevant council can revisit it.

While this process may sound nice and democratic at face value, it is in fact extremely problematic.

Firstly, voters do not have equivalent power to demand a poll where a council decides to establish a general ward or constituency. So, there’s a double standard by which only Māori participation and representation is subject to a general community review.

Secondly, it just doesn’t make sense to have the non-Māori majority decide on an issue that involves only Māori. As David Cull, the previous president of Local Government New Zealand, notes: “[there are] quite a lot of questions in the local government sector as to why when a geographical ward is proposed the people affected are asked, whereas when a Māori ward is proposed everyone is asked, even those that are not affected. And that is not seen among a good number of our members as fair or equitable at all.” The impact is that a Pākehā majority is deciding the level of representation for a Māori minority. Continued colonisation at its finest.

Thirdly, this law is flagrantly contrary to Te Tiriti o Waitangi. Te Tiriti guarantees Māori participation and representation in governance. But the local poll veto routinely stops Māori representation in its tracks. Te Tiriti is also meant to establish a partnership relationship, but how can this be if one partner is stopped from sitting at the table?

And Māori are being stopped. Only two councils have successfully introduced Māori wards since this law came into force in 2002. At least nine others have tried to do so, only to fail after the community vetoed the decision. This year, New Plymouth District Council, Tauranga City Council, Ruapehu District Council, Northland Regional Council, Kaipara District Council and Whangārei District Council all have chosen to create Māori wards for the next local body elections. Unfortunately, they all face a real threat of a binding poll overturning their resolutions. This is not democracy, this is racism.

So, the current law is stopping Māori representation from being achieved. For anyone still in doubt about the validity of Māori wards, Dr Annie Te One eloquently myth-busts misapprehensions about them here. If Aotearoa wants to redress the atrocities of colonisation and step into the future supporting Māori interests, Māori should and must be included in running the country at all levels. At the very least, that requires removing obstacles to Māori representation like sections 19ZA-19ZC.

In 2017, Marama Davidson put forward a member’s bill to do just that. Her bill highlighted the double standard that exists between Māori versus general wards/constituencies, and the breach of Te Tiriti principles. Sadly, it failed at first reading due to opposition from New Zealand First, National and Act. Now, with a Labour majority comfortably unshackled from New Zealand First, nothing stands in the way of Nanaia Mahuta’s desire to see its repeal.

With six councils having recently resolved to form Māori wards, this ought to be done under urgency. Otherwise, if any – much less all – fall to a local poll veto, then they will be blocked from introducing specific Māori representation for another two election cycles. That’s six years in which they will be without genuine Māori representation and compliance with Te Tiriti. Facing this situation, compliance with Te Tiriti ought to outweigh the need for the niceties of parliamentary procedure. Urgency is needed and justified.

Local government cannot be considered representative without the inclusion of tangata whenua. If elected councillors believe specific Māori representation on a council will allow that body to best represent the community it serves, they should be able to make the decision just as they do with any other local electoral matter. To ensure that Māori representation is no longer gate-kept by Pākehā majorities with misplaced fears, sections 19ZA-19ZC must be repealed as soon as possible.

Florence Dean is a law clerk at the Ngāi Tahu Māori Law Centre