Mandatory Māori wards in local government: Active Crown protection of Māori Treaty rights

Abstract

Historically, few Māori have been elected to local government. In the last 10 years the Crown has created two opportunities for local government to increase the number of Māori elected: the Local Electoral Act 2001 allows a local government to change its electoral system from the first-past-the-post (FPP) to the single transferable voting (STV) system; and the Local Electoral Amendment Act 2002 allows a local government to create local Māori wards and Māori constituencies (replicating the model of Māori representation in the House of Representatives). Very few local governments have implemented either option. A small (and declining) number of councils have changed to STV. A few councils have polled their electors on the matter of establishing Māori wards, but each poll rejected them. In 2010 the Crown renewed its commitment to the ‘option’ of local electoral reform in establishing the new Auckland City Council. The Crown rejected a Royal Commission recommendation to guarantee Māori representation in the reconstituted council, preferring to allow the council and Auckland voters to engage in electoral reform if they wish to do so. Following the 2010 local government elections, Māori are still chronically under-represented amongst elected councillors. This article argues that the Crown is failing in its duty of active protection of Māori in laws relating to Māori representation in local government. Drawing on Kymlicka’s arguments about group representation, the article argues that the Crown has dual obligations to Māori in relation to local representation. It must recognize Māori as a community of interest in local electoral boundaries and it also must increase the number of Māori elected to local government. Both obligations can be met through the mandatory creation of Māori wards in all local government. This article also defends guaranteed local Māori representation against some common objections.