Brian Rudman: Maori board hops over the law

Illustration / Peter Bromhead

It's rare for politicians to admit their mistakes. Particularly one as recent as Auckland Council's unelected Maori Statutory Board.

So a tick for former Local Government Minister Rodney Hide, for admitting last Friday that the board he created was "a mistake ... a recipe for division and poor governance ... where short-term political interest overruled what was best for Auckland's future."

He says he is "deeply embarrassed by that failure", noting that "critical decisions can turn on the vote of Maori Statutory Board members who themselves aren't democratically accountable".

Unfortunately, Mr Hide is no longer in government, so can do nothing but wring his hands on the sideline and wish he'd done better. What is urgently needed before next year's local government election is a law change that finally brings true democracy to Auckland governance. As Mr Hide says, "The people running government should be elected, or appointed by those who are."

His apology coincides with a Court of Appeal decision upholding a High Court ruling that the 2013 selection process for the Maori Statutory Board members on Auckland Council committees had been "unlawful".

The Super City legislation required that an unelected selection body of 19 members representing separate mana whenua - local iwi or hapu - groups, appoint nine board members for the three-year term. Seven of the board members had to represent mana whenua, the other two had to represent mataawaka - Maori who have migrated to Auckland from elsewhere in the country.

Following the August 15, 2013 selection meeting, one of the six unsuccessful mataawaka candidates, broadcaster Willie Jackson, cried foul and instigated appeal procedures.

It wasn't until more than a year after the selection process that Justice Ailsa Duffy upheld his appeal, ruling the appointment of Tony Kake, one of the two mataawaka delegates, had not been properly done and telling the selectors to try again. The judgment highlighted how rushed and inadequate the selection process had been.

Instead of accepting this, the selection panel appealed, threatening to drag Auckland councillors in their individual capacity to court, if they refused to fund the action. A majority of councillors buckled to the threat.

Three Court of Appeal judges have now dismissed the appeal, awarding costs against the council-funded selection panel. So far the legal bill faced by ratepayers is $110,000. It would have been even higher had a big city law firm not represented the panel in the High Court proceedings for free.

The Court of Appeal was to the point, agreeing with the lower court that the selection panel had "acted unlawfully" in failing to act as body, as required by their legislation, in picking the two mataawaka representatives. As outlined in the earlier judgment, instead of discussing the merits of each of the eight candidates as a group, the panelists had decided instead to adjourn, read voluminous background notes over their lunch, then cast a secret vote, before reassembling.

The Court of Appeal ruled invalid not only Mr Kake's appointment but also that of the other mataawaka representative, Mr John Tamihere.

While the action had been brought by Mr Jackson challenging Mr Kake's appointment, Justice Rhys Harrison noted Mr Tamihere's appointment "suffers from the same defect in that it was the consequence of an unlawful process". He added that the Appeal Court could not set aside Mr Tamihere's appointment because no one had asked it to do so. But "it will now be a matter on which the board must take advice on the future steps to be taken in light of this judgment in order to fulfil its statutory mandate."

Auckland Council is now seeking advice on whether it requires a ministerial trigger to revive the now defunct selection panel so it can revisit the selection process.

As for Mr Tamihere, because no one objected at the time of his selection, his position on council committees seems secure, even though the Appeal Court says his appointment was "unlawful". As a man of integrity, he must surely be considering his position.

But as Mr Hide has belatedly come to accept, it's not just those two positions that are questionable. It's the whole unelected nature of the Maori board that needs addressing.