High Court rules Crown's Māori Wardens funding deal unlawful

The High Court has declared unlawful a Crown decision to fund a trust to run the work of Māori Wardens without the New Zealand Māori Council or the District Māori Councils. The court held that control of the wardens belongs to those councils under the Maori Community Development Act 1962.

The judgment was released on 22 October. According to the Māori Council, it was delivered by Justice La Hood in a case the Council brought against the Ministry of Māori Development, Te Puni Kōkiri.

The court's published summary says District Māori Councils, and through them the NZ Māori Council, have "exclusive power and authority" to control and supervise Māori Wardens in their districts under sections 16(5) and 7(5) of the Act.

The main question was how far that power reaches. Sections 31 to 35 of the Act give wardens specific powers to deal with disorder and alcohol consumption. The court held that the councils' control is not limited to those powers. It also covers the wardens' general statutory duties and functions.

That finding sank the funding agreement. According to the court's summary, the money was for the trust "to govern, manage and deliver" the wardens' general duties and functions without the Council or the District Māori Councils being involved. The court found the Crown had exercised a degree of control over the trust's work in two ways: it supplied the money needed to do the work, and it attached conditions about how the work had to be done. That control encroached on the councils' exclusive authority, and the court held the agreement was contrary to the Act.

The court granted the Council's application and made an order declaring the decision to enter the funding agreement unlawful.

The court's summary does not say what happens to money already paid to the trust.

The Council's press release, published on Scoop, said the agreement had sought to bypass the Council and the District Māori Councils and give all operational funding for the wardens to a newly established trust.

"This case was never about the Wardens or their funding," said Māori Council co-chair Anne-Marie Kendall QSM. "Māori Wardens do outstanding work in our communities, and we have always wanted their funding to continue. The Court recorded that no one disputes it should. The only question was how that funding is provided under the law Parliament passed."

She said the court had made clear that funding of this kind can be provided with the involvement and consent of the Māori Council and the District Māori Councils. She also said everyone agrees the 1962 Act needs updating, and that the Council is ready to work on that with the Crown and the wardens.

The Waitangi Tribunal has described the wardens as unpaid volunteers whose work includes tackling truancy, helping with neighbourhood patrols, assisting at tangi and major events, and advocating for Māori dealing with government agencies and the courts.

The dispute goes back a long way. In its report Whaia te Mana Motuhake / In Pursuit of Mana Motuhake, released on 8 December 2014, the Waitangi Tribunal upheld the Māori Council's claim that the Crown's review of the 1962 Act, and its running of the Māori Wardens Project, breached the principles of the Treaty of Waitangi. The Tribunal found the project undermined the 1962 agreement between the Crown and Māori, and the position of the Council and its district councils. It called the Act the only statute in New Zealand that recognises a general Māori right to self-government.

The Tribunal recommended interim steps to ensure Māori oversight of the Wardens Project. It also recommended that the Māori Council lead a review of the Act, taking in the views of wardens and a wide range of Māori communities.

The Council's release and the court's summary carry no response from Te Puni Kōkiri, the Minister for Māori Development or the trust. Neither says whether the Crown will appeal.