Te Whanaungatanga a te Karauna me te Mäori:

Transcription

1 WHAKAMANA INFLUENCE Te Whanaungatanga a te Karauna me te Mäori: Ngä tohutohu mo te kawanatanga me ngä tari kawanatanga Crown-Mäori Relationship Instruments: Guidelines and Advice for Government and State Sector Agencies

2 REALISING MÄORI POTENTIAL 1 Mätauranga Building of knowledge and skills. MÄTAURANGA KNOWLEDGE WHAKAMANA INFLUENCE + + = RAWA RESOURCES TE IRA TANGATA LIFE QUALITY Whakamana Strengthening of leadership and decision-making. This area recognises that Mäori success relies on their capacity to lead, influence and make positive choices for themselves and others. It acknowledges that the capability and opportunity for Mäori to make decisions for themselves, to act in self-determining ways and to actively influence decisions that affect their lives, is integral to individual/collective wellbeing. 3 Rawa Development and use of resources. 4 Te Ira Tangata The quality of life to realise potential. The framework above identifies three key enablers that are fundamental to Mäori achieving Te Ira Tangata (improved life quality) and realising their potential. All our written information has been organised within these three key enablers or Te Ira Tangata. DISCLAIMER The information contained in this publication is for general information only. While every effort has been made to ensure the accuracy of the information, because the information is generalised, its accuracy cannot be guaranteed. Readers are advised to seek independent advice on particular matters and not rely on this publication. No liability is assumed by Te Puni Kökiri for any losses suffered directly or indirectly by any person relying on the information contained in this publication. Te Puni Kökiri 2006 ISBN September 2006

3 CONTENTS Introduction Purpose of the Guidelines Definitions MINIMUM STANDARDS AND GUIDELINES Overview Phase 1 Contemplating a CMRI Promoting a Positive and Worthwhile Relationship Sufficient Resources Common Themes (from discussions with parties to CMRI) Phase 2 Negotiation and Drafting The Relationship Drafting your CMRI Duration Use of Statements about the Treaty of Waitangi Consistency with Policy Framework Phase 3 Approval and Execution Approval of CMRI Execution Central Repository and Annual Reporting Phase 4 Evaluation, Review and Renegotiation Future-proofing your CMRI Evaluation Review Renegotiation APPENDIX Appendix 1 Cabinet Requirements Checklist Relationship Management Checklist Appendix 2 Flow Diagram: Developing a CMRI Appendix 3 Cabinet Approved Treaty Statements Appendix 4 Model CMRI for Agencies Appendix 5 Model CMRI for Crown Entities Appendix 6 Terms of Reference for the CMRI Database

4 FOREWORD E ngä mana, e ngä reo, e ngä karangatanga maha, tënä koutou. 2 We are pleased to introduce the Crown-Mäori Relationship Instruments: Guidelines and Advice for Government and State Sector Agencies, available on and through a link to The theme of National Identity is a Government priority focussed on all New Zealanders having pride in who and what we are; a key aspect of this priority is the strengthening of Mäori culture and identity. The Crown-Mäori Relationship Instrument Guidelines have been developed to further promote effective working relationships between the Crown and Mäori, of which one outcome is to support Mäori in realising their own potential. The Government is firmly committed to building positive working relationships with whänau, hapü, iwi and Mäori organisations in all forms. The relationships between Mäori and the Government are complex, multi-faceted and ongoing. These Guidelines provide a whole-of- Government approach to developing relationship instruments. Government agencies and Mäori provided advice during the preparation of these Guidelines. We hope the Guidelines will make a valuable contribution towards the development of effective Crown-Mäori relationships, and encourage Government agencies to use the information contained in the Guidelines and develop consistent, mutually beneficial relationship instruments. Ko koe ki tënä, ko ahau ki tënei kïwai o te kete. Heoi ano, nä, Hon Parekura Horomia Minister of Mäori Affairs Hon Mark Burton Minister of Justice CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

5 INTRODUCTION The Government values the many productive working relationships it has with whänau, hapü, iwi and Mäori organisations in all forms. These Guidelines have been prepared to assist state sector agencies in 3 developing and formalising relationships with these organisations. The Guidelines provide advice on: negotiating and drafting Crown-Mäori Relationship Instruments (CMRI) the process for finalising relationship instruments, creating a consistent internal Crown process for the execution of CMRI, and mechanisms for evaluating and reporting on CMRI. To encourage consistency, the Guidelines should be used when forming new CMRI and when re-negotiating existing relationship instruments. Throughout the Guidelines reference to Government policy appears in shaded boxes. These are usually accompanied by explanatory notes. Additional material is included in the appendices. We hope you find these Guidelines useful and welcome any feedback on their application. INTRODUCTION

6 PURPOSE OF THE GUIDELINES In 2004 the Government agreed to a CMRI policy framework designed to: increase consistency between CMRI increase awareness of the agreements executed across the state sector contribute to the living relationship envisaged by both parties to the Treaty of Waitangi assist the development of robust relationships between the Crown and Mäori. The purpose of these Guidelines, therefore, is to assist compliance with the CMRI policy framework. 4 HOW TO USE THESE GUIDELINES: There are checklists on pages 35 and 36. Please use them, and refer to the document for further information. The highlighted text in purple are the Cabinet decisions. DEFINITIONS A CMRI is: A documented agreement or arrangement, signed by both parties, that establishes or recognises an ongoing collaborative relationship between Ministers, Government agencies or Crown entities, and a whänau, hapü, iwi, Mäori organisation or Mäori community. CMRI often take the form of Memoranda of Understanding, Deeds of Agreement or similar documents. However, the following exclusions to the definition apply: Contracts for the purchase of services, which contain purely contractual provisions and which do not contain provisions referring to the wider relationship. Memoranda of Understanding or protocols developed pursuant to Deeds of Settlement in the historical Treaty settlement negotiation process. These are informed by the Office of Treaty Settlements Ka tika a muri, ka tika a mua, Healing the past, Building a future: A Guide to Treaty of Waitangi Claims and Negotiations with the Crown, and are subject to separate approval processes. Agreements and arrangements developed in negotiations under the Foreshore and Seabed Act These are subject to a separate vetting and Cabinet approval process. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

7 Advice on whether a contract constitutes a CMRI is available from the Ministry of Justice and Te Puni Kökiri. Experience suggests that developing good relationships is still important to the effectiveness of contracts, and the parties should consider whether a CMRI would usefully support their contractual arrangements. However, it is recommended that contracts be written as separate documents to manage legal obligations and allow for periodic review or renewal. Agencies should follow their internal processes and Treasury guidelines on contracting for services with non-governmental organisations entitled: Checklist for Agencies - Guidelines for Contracting with Non-Government Organisations for Services Sought by the Crown - The Treasury. 5 Agency: for the purpose of these Guidelines the term Agency is used to refer to any Crown party to a CMRI. An Agency, therefore, may be a Department, Ministry or any other Crown body that may become, or is, a Crown party to a CMRI. Mäori Collective: for the purpose of these Guidelines Mäori Collective is used to refer to any whänau, hapü, iwi, Mäori organisation, Mäori community or any other Mäori collective that is, or may become, party to a CMRI. CMRI Officials group (CMRIOG): is comprised of officials from the Ministry of Justice and Te Puni Kökiri. CMRIOG is responsible for advising Agencies on compliance of proposed CMRI with the CMRI policy framework, and advising more widely on matters regarding CMRI and the policy framework. Key Government Goals to Guide the Public Sector in Achieving Sustainable Development: issued on 22 February 2000 and reconfirmed by Cabinet on 10 April These are the Government s high-level goals for New Zealand. Their purpose is to provide a clear frame of reference to guide public sector policy and performance. The current key Government goals to guide the public sector in achieving sustainable development are available on the Department of the Prime Minister and Cabinet website: Principles for Crown Action on the Treaty of Waitangi: issued by the Fourth Labour Government in 1989, set out the principles by which the Government would act and make decisions about matters relating to the Treaty of Waitangi. These principles were accompanied by quotations from the courts and the Waitangi Tribunal with explanatory comment by the Government. Statement of Government Intentions for an Improved Community-Government Relationship: issued in December 2001, signed by the Prime Minister and the Minister Responsible for the Community and Voluntary Sector. This Statement articulates clear objectives for an improved relationship with the community sector. DEFINITIONS

8 6 OVERVIEW OF MINIMUM STANDARDS AND GUIDELINES WHAKAMANA INFLUENCE: INSPIRED BY THE MOUNTAIN STANDING TALL UPON THE LANDSCAPE, THIS PATTERN IS SYMBOLIC OF INFLUENCE. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

9 OVERVIEW In developing and executing a CMRI there are generally four phases: Phase 1: Contemplating a CMRI 7 Phase 2: Negotiating, Drafting and Compliance Advice Phase 3: Formalisation and Execution of a CMRI Phase 4: Evaluation, Review and Renegotiation of a CMRI These Guidelines have been structured with each phase in mind. PHASE 1: CONTEMPLATING A CMRI This section includes: preliminary advice on relationship management advice on various resource requirements which may be necessary to develop a CMRI a summary of themes arising from consultation with parties to some existing CMRI. PHASE 2: NEGOTIATING, DRAFTING, AND COMPLIANCE ADVICE This section includes: guidance on relationship-building advice on drafting a CMRI information on compliance with Cabinet s directions the process for obtaining advice on whether your CMRI complies with the policy framework from the Officials group. PHASE 3: FORMALISATION AND EXECUTION OF A CMRI This section includes: submission of your completed CMRI to Cabinet for approval if necessary submission of executed CMRI to Te Puni Kökiri for inclusion in a national CMRI database. PHASE 4: EVALUATION, REVIEW AND RENEGOTIATION OF A CMRI This section includes: advice on future-proofing your CMRI the need for evaluation and review of your CMRI the possibility of renegotiation. OVERVIEW

10 8 PHASE 1 CONTEMPLATING A CMRI CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

11 In contemplating a CMRI the following three principles should guide your approach: both parties should have a shared interest in developing the relationship it must lead to an identifiable outcome both parties should set the parameters of the relationship together. 9 PROMOTING A POSITIVE AND WORTHWHILE RELATIONSHIP Before any Agency enters into a CMRI, it must consider whether the proposed instrument can contribute in a genuine way to the promotion of a positive and worthwhile relationship for both parties, and whether the human and financial resources and commitment to the relationship are in place to ensure that the CMRI operates as intended for a sustained period. Relationships are stronger when based on rules that both parties establish together. A CMRI can formally record these rules. When contemplating if a CMRI is desirable the Agency should consider whether: the CMRI will help develop or maintain a positive relationship between the parties and that the views of the respective parties have been appropriately taken into account both parties are committed to the relationship documented by the CMRI and to the outcomes sought under it both parties consider there are benefits of a CMRI the outcomes expected of the CMRI are clear to both parties and are achievable the CMRI is an effective way for the Agency to accomplish its objectives/outcomes 1 the CMRI will assist the Mäori Collective to accomplish its goals the CMRI will have implications for the broad Crown-Mäori relationship including Treatybased relationships or Government-Mäori relationships (observing that a Treaty relationship between the parties may not exist) the CMRI will impact on the Agency s relationships with other stakeholders. As an integral part of strategic planning and stakeholder management, an Agency should consider whether developing a CMRI is appropriate or whether there are other ways of achieving the same objective. Where the Mäori Collective is a representative body, the Agency should make every effort to understand the membership of the group, whether the Collective has authority to represent the group s interests and the geographical area represented. 1 These include the Key Government Goals to Guide the Public Sector in Achieving Sustainable Development, Department of Prime Minister and Cabinet (2003), and Statement of Government Intentions for an Improved Community-Government Relationship, issued December CONTEMPLATING A CMRI

12 Agencies should be aware that the Crown may enter (or may have already entered) into CMRI with different Mäori Collectives that have overlapping interests, boundaries or membership. Consistency is important. Therefore, Agencies should be confident that the membership and territory represented by a particular Mäori Collective is consistent with who and what area it represents in other CMRI. 10 The CMRI database within Te Puni Kökiri can be accessed to help establish this information. Alternatively officials in Te Puni Kökiri or the Office of Treaty Settlements can be contacted for advice. Tühono ( Te Aka Kumara o Aotearoa ( and Te Kähui Mängai ( are also useful resources to help establish or confirm this information. RESOURCE IMPLICATIONS Agencies should consider whether the human and financial resources and commitment to the relationship are in place to ensure that their CMRI operates as intended for a sustained period, before entering into any CMRI. Staff and Time Parties to existing CMRI have found that developing and implementing a CMRI can require significant investment in terms of staff and time. The following should be considered: does your Agency have staff with the requisite: experience to build an effective CMRI and sustain a relationship with the Mäori Collective or empathy and skills to learn how to do this? if neither, how does the Agency plan to build its capacity and skill-base? CMRI are more successful when organisations are committed to advancing the relationships; and individuals establish personal ownership of the relationship and the CMRI, including capacity to handle tasks appropriately and provide for succession needs. A clear avenue of contact for the Mäori Collective and the ability to interact kanohi ki te kanohi (face-to-face) will facilitate a stronger relationship between the parties and a more effective CMRI. Finances Financial resources will be required to develop and manage a CMRI. The resources available to both parties should be considered in the development stage, especially if the CMRI is intended to last for an extended period of time. Mäori Collectives can have very stretched human and financial resources. This may need to be reflected in the CMRI and Agencies may need to contribute to the development and management of the CMRI accordingly. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

13 Agencies should consider expenses relating to: staffing costs for those allocated to the work developing the requisite understandings for the parties to operate effectively under the CMRI, such as: the Agency s overall objectives for the Crown-Mäori relationship cultural training for staff (for example, in te reo or the tikanga and kawa of the particular Mäori Collective) building of technical capacity relating to the subject-matter of the CMRI for staff of the Mäori Collective negotiating the CMRI operational aspects of the CMRI, such as: regular meetings travel hosting expenses exchange of information reporting and monitoring progress reviewing the relationship. 11 COMMON THEMES (FROM DISCUSSIONS WITH PARTIES TO CMRI) The comments set out in this table illustrate the kinds of issues which parties to CMRI considered important or relevant to the development of effective CMRI. Theme Capacity, resourcing and commitment Comment The capacity within Mäori Collectives is often spread very thin: financially and personnel-wise. Resources of Agencies can be limited and some may only enter agreements with Mäori on an as needed basis. Mätauranga (knowledge) is an important resource. Seek to understand what knowledge is being contributed by each party. Commitment levels on both sides should be equal and agreements should embody the principle of reciprocity. CMRI should be entered into with genuine intent, not for reasons perceived to be tokenistic (especially not as a statutory tick-box for interaction with Mäori). Agreements should be based on the parties seeking solid outcomes. The Agency should consider what benefit Mäori will get from the agreement, not just what the Crown will gain. Succession planning While there is generally continuity of personnel on the Mäori side, there can be difficulty in maintaining effective relationships between parties to CMRI and institutional knowledge as staff move through the public service. Good internal processes can assist this. CONTEMPLATING A CMRI

14 Theme Benefits of CMRI Comment Relationships based on a CMRI can also extend to other aspects of an Agency s work, and give each party a channel of communication into the other. Some Agencies feel these agreements are beneficial because they get the input they need to make decisions more effectively. 12 Trust and good will Trust and good will are vital to relationships and can only be built up over time. This includes developing understanding of and respect for the other party s particular circumstances and its social and cultural context. The efficacy of the agreement is dependent on the health of the relationship between the parties. Crown constraints and risks are more often accepted when they are made clear in the context of acting in good faith and intent. The drafting process should have equal input by both sides in order to assist in creating trust and enhancing the relationship. Appropriate level of interaction Appropriate levels of communication and interaction are important. For example, a Crown official who does not have signing-off authority should not approach the Chief Executive of a Mäori Collective to develop or discuss a CMRI. The Agency should gain an understanding of the internal structures of the Mäori Collective (which can parallel those of the Crown) and work within these structures. It is important to have clear avenues of communication at all levels between the Agency and Mäori Collective. For example, where an agreement has sign-off at a high level, both parties need to ensure that the agreement is working well lower down at the operational level. Significance of agreements to Mäori CMRI may represent commitments to the tipuna and future generations. When a Mäori Collective enters into a CMRI, it may be offering the mana of that group and expect the same commitment from the Agency. Treaty underpins the agreements Even if not explicitly stated within the agreement, Mäori may see the partnership inherent in the Treaty of Waitangi as the basis of the agreement (especially apparent with iwi). CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

15 Theme Clarity of agreement Comment Agreements should always have a clear purpose. There should always be clarity in relation to each party s expectations and understandings. If there are separate understandings on particular issues, the CMRI should be clear about which views are shared and which are not. Most agree that there should be a division between the higher level CMRI and the more operational matters under it (other protocols or contracts). Agencies should be clear in relation to the following: whether they are the Crown or an agency for the Crown their right to interact with other Mäori Collectives if necessary (for example in the same area) their constraints and obligations (statutory or otherwise). 13 Uniqueness of agreements If agreements are based on a template there should be room for variation depending on the objectives and circumstances of the parties. It is important to affirm the uniqueness of each relationship. Disputes Dispute resolution works best if it can be done by discussion between the parties using the relationship rather than the document. Crown agencies indivisible from the Crown Monitoring relationship Notwithstanding an Agency s particular mandate and responsibilities, it may be seen by the Mäori Collective as representing the whole of the Crown because it may be the only existing relationship the particular Mäori Collective has with the Crown. Regular interaction is important for maintaining the relationship. More lasting and healthy relationships are facilitated by regular review of the CMRI and relationship. CONTEMPLATING A CMRI

16 14 PHASE 2 NEGOTIATION AND DRAFTING CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

17 THE RELATIONSHIP Building a strong relationship Once both parties have decided that they want a CMRI, they will need to invest in establishing a strong relationship and CMRI by building: trust and goodwill mutual understanding respect for the differences between them. 15 Strong relationships are built over time, however, both parties should consider how they can strengthen the relationship when initiating, drafting, executing or renewing a CMRI. Building trust and goodwill Building trust and goodwill requires: continual commitment of both parties to the goals of the relationship both parties acting with good intent and in good faith ensuring the ability of the parties to live-up to their commitments. Where a relationship does not pre-exist, or needs improvement, building trust, respect and understanding are the most important steps. Understanding each other It is important for both parties to a CMRI to understand the other s internal processes and practices. In some cases a facilitator has been useful, especially early in the relationship. This is usually a person with experience of both types of organisation. Every organisation is unique, so there will be no standard response to how a CMRI is established. Even where an approach has been effective in the past, it should not be assumed that it will always be appropriate. The Agency should attempt to understand the particular circumstances of the Mäori Collective and its social and cultural context. Examples of where understanding will be most important are: importance of the CMRI to the Mäori Collective how the Mäori Collective views the Agency s relationship to the Government (for example: the independence of a Crown entity) the Mäori Collective s view on the role of the Treaty of Waitangi and how it relates to the CMRI, if at all what both parties are willing and able to offer the relationship the implications of any iwi management plan or other policy documents the appropriate avenues and means of communication and interaction in the relationship and under the CMRI. NEGOTIATION AND DRAFTING

18 It is important that both parties understand what the other can and cannot do in the context of the relationship and any potential CMRI. This includes any statutory and other constraints. Best practice involves the Agency advising the Mäori Collective and ensuring understanding of: any objectives the Agency has and any outcomes it is responsible for managing any statutory imperatives, obligations or limitations that may bind the Agency including the requirements of the Official Information Act the financial constraints of the Agency regarding the operation of the CMRI any policy that may impact on the CMRI (including the fact that policy can change) any Government policy that may have a bearing, including an early and clear understanding of the requirements of the CMRI policy framework. 16 Lines of communication and contact within the Agency should be made clear to the Mäori Collective very early and when and as they change. Respecting differences Compromise on particular issues is not always possible or appropriate. Sometimes the priorities and restraints of the Agency are incompatible with the commitments and beliefs of the Mäori Collective. In these circumstances, both parties should attempt to understand the reasons for the differences between them and respect those differences. In some matters, such as understandings of the Treaty of Waitangi, it may be possible to recognise differences between the parties in the CMRI (see the section on Use of Treaty statements, Phase 2, Negotiating and Drafting). Parties need to exercise judgment regarding situations where a difference is so fundamental that a CMRI is not possible or appropriate. DRAFTING YOUR CMRI Drafting CMRI should be collaborative to allow for genuine input by both parties and to ensure the continuation of a shared sense of vision for the agreement. Agencies should avoid presenting Mäori Collectives with CMRI that are largely complete. Basic template agreements may be useful, but it should be apparent to both parties that the CMRI can be individualised to suit the circumstances, the relationship and its particular purpose. Appendices can be a useful means of including specific information or protocols. Cabinet has decided that every CMRI should demonstrate certain characteristics. The shaded boxes that follow contain the requirements and are accompanied by advice where necessary. All the requirements for CMRI are contained together in the Cabinet Requirements Checklist (Appendix 1). This section also includes advice on Dispute Resolution, Confidentiality and Information-Sharing clauses in CMRI. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

19 DEFINITION OF THE PARTIES All CMRI are to include clear statements of who the parties are and who they represent, preferably with a legal description and reference to their accountabilities and relationships. Agencies The full name of the Agency should be used, with reference to any Act under which it is established and to appropriate rights and responsibilities that may relate to the subject-matter of the CMRI. For example: Te Kaunihera Whakatüpato Waipiro o Aotearoa, the Alcohol Advisory Council of New Zealand ( Te Kaunihera ), is a Crown entity and a body corporate established under the Alcohol Advisory Council Act Te Kaunihera has the objective of encouraging responsible use of alcohol and minimising its misuse. 17 Where the Mäori Collective will effectively have dealings with one particular agency, using the name of that agency provides clarity about the principal lines of communication. For example: The Director General of Conservation acting by and through the Rotorua Lakes Area Manager, Department of Conservation, Bay of Plenty Conservancy. In the case of a Crown entity it may be useful to set out its relationship to the Government in the CMRI. Mäori Collectives It is useful if the Mäori Collective is a legally constituted body as this provides certainty in dealings with the organisation. For example: <The Mäori Collective> is represented in this Memorandum by the <e.g. Trust>, <address>. The Trust was incorporated on 30 January 1998 with the purpose of addressing the collective needs of <the Mäori Collective>. Where the relationship is with a discrete part of a larger group, the party specified in the CMRI should reflect this. If the Mäori Collective is subject to other agreements that might affect its relationship with the Agency, these should be reflected. For example: <The Mäori Collective> is a business unit of <the iwi council> ( Te Rünanga ) which is the tribal representative body of <the iwi> Whänui, established under <section x of the relevant Act>. Te Rünanga represents the collective of Papatipu Rünanga (council of owners of land with Mäori title) with which it must consult on all appropriate matters. NEGOTIATION AND DRAFTING

20 PURPOSE All CMRI must contain clear statements of purpose. Clarity of purpose means that a CMRI should include: why the CMRI is being executed and/or what the CMRI aims to achieve. For example: The objective of this agreement is to define the roles, responsibilities and obligations of the parties in a co-operative and joint project for the ecological restoration of the area. 18 The Agency should be clear whether it is developing the CMRI as part of fulfilling Treaty of Waitangi obligations or not. See the section on Use of Treaty Statements. DEFINITION OF TERMS All CMRI are to include clear statements of definition of any terms liable to cause misunderstanding. Both parties must be clear about the meaning of terms used in a CMRI and definitions should be used where necessary. It should be made clear that the definition of some terms in CMRI refer to the context of the particular CMRI and relationship, and do not apply to other parts of the Crown. Partnership in particular can mean many different things and should generally be avoided in CMRI; if it is used it should be defined very carefully. Use of Te Reo Mäori The use of te reo Mäori (the Mäori language) in CMRI is entirely appropriate, but mutual understanding of the content is essential. Where text is included in te reo Mäori, it should also be translated into English, for example kanohi ki te kanohi (face to face). A section defining terms used within the instrument may be useful where the use of a word-for-word translation does not offer a full understanding of the concept. For example: Rangatiratanga - Autonomy. Recognising that each party will have different lines of accountability. Enabling each party to develop and grow in its own way while recognising and acknowledging difference. Kötahitanga - Unity. Agreement to work together towards a shared vision. Manaakitanga - Goodwill. A commitment to work together within an environment of trust, respect and generosity towards each other. Recognising and understanding the capabilities and constraints each party brings to the relationship. Where an instrument is written in both Mäori and English, it is useful to state how the two documents will work together; for instance, which document has precedence if there is conflict. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

21 UNDERTAKINGS All CMRI must contain clear statements of any undertakings regarding outcomes, aspirations, deliverables or processes. Where the parties to a CMRI share the same understanding and expectations, it leads to a more effective CMRI and helps sustain a good relationship between the parties. Conversely, misunderstanding can have the opposite effect on the agreement and relationship. Both parties should be clear about their intended outcomes and how they intend to achieve them. Flexibility is also an important attribute in many CMRI, and clarity and flexibility must be balanced in the drafting process. Therefore, while understandings between the parties need not be set out in detail in the CMRI, understanding between the parties outside of the CMRI is essential. However, setting this out in the CMRI itself has the advantage of aiding longevity of understanding, especially important in CMRI which are intended to last for a long period of time. 19 Clarity of undertaking means that a CMRI should include: the specific outcomes/aspirations/deliverables that the CMRI is intended to achieve the processes agreed upon to achieve those outcomes/aspirations/deliverables (for example: consultation, sharing of information, working together on an action plan or to promote mutual outcomes) the roles and responsibilities of the parties (what is to be achieved, by whom and by when) any relationships that might impact on the operation of the CMRI, including accountability arrangements with a responsible organisation and relationships with third parties details of operation of the CMRI (for example: funding for meetings or training, channels of communication, the kawa/protocol that will govern the relationship). How undertakings in a CMRI relate to one another and to the other sections of the agreement should also be clear. The use of vague terminology is a common difficulty in interpreting undertakings in CMRI. For instance, the parties may have a different understanding about what is meant by regular discussion (weekly, monthly, yearly?) Or of what is relevant to the interests of the parties (in relation to the CMRI or anything that could potentially affect either party?) CMRI should therefore avoid imprecise language and the Agency should ensure that the Mäori Collective shares the same understanding about undertakings. LEGAL STATUS All CMRI must contain clear statements of the identity of the signatories, date the agreement is signed, and date of the execution of the agreement. CMRI should generally not be legally binding, as they are aspirational rather than contractual documents. They do carry moral obligations and rest on the honour of the parties, so the Agency must be sure that it can fulfil its obligations under the CMRI. Unless the CMRI is part of, or includes, a contract for service, the parties intention not to be legally bound by the CMRI should be expressly recorded. NEGOTIATION AND DRAFTING

22 For example: The parties acknowledge that this <CMRI> is not legally enforceable, but that this does not diminish the intention of the parties to comply with the terms and conditions of this <CMRI>. Any contract for service should be recorded separately from the CMRI, in a document that is intended to be legally binding on the parties; they should generally not be combined. If the two are combined, the document should clearly indicate which parts are, or are not, legally binding. 20 DURATION All CMRI must contain clear statements of duration and/or any date for review. If a CMRI only refers to a particular task or outcome, a clause agreeing to a particular duration may be appropriate. CMRI require substantial commitment and should continue to exist only where the purpose for the CMRI and the commitment of the parties to it continues. Otherwise there is a danger of the CMRI becoming tokenistic. Where the parties to a CMRI wish to continue the formal relationship, review of the CMRI can facilitate re-investment in the relationship and provide a regular opportunity for: the relationship to continue to develop the relationship s protocols to be improved or re-confirmed the relationship to change direction. Specifying a review date, therefore, commits the parties to re-examining and developing the relationship. SIGNATORIES All CMRI are to include clear statements of whether or not they are intended to be legally binding upon the parties, noting that CMRI should only be legally binding where circumstances require this. Only those with authority to represent the parties should be signatories to CMRI. Signatories should be identified by name and office for ease of future reference. The date the agreement is signed and the date the instrument comes into effect should be specified in both the signatory section and the front page of the CMRI. If witnesses are used, their names and contact details should be included and clearly visible. STATUTORY OBLIGATIONS Any commitments undertaken within CMRI are to be consistent with the Agency s statutory obligations and not devolve statutory obligations inappropriately or limit the ability of the agency to meet those obligations. A CMRI should acknowledge any legal obligations that cannot be contracted out of or abrogated by relationship instruments. Commitments to address any concerns about these obligations should be recorded, to provide legal protection and clarify expectations between the parties. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

23 For example: The <Mäori Collective> acknowledges that the <Agency> is a Government department, and that this agreement will not require the <Agency> to act in any way contrary to its obligations pursuant to Ministerial or Cabinet direction, or under relevant legislation, or pursuant to any contractual obligations it has established with other parties. The <Mäori Collective> agrees that nothing in this agreement shall be taken to mean that the <Agency> or any other Crown agency or department in any way abrogates its statutory or contractual responsibilities. The <Mäori Collective> further agrees that it will take all steps within its power to ensure that the <Agency> and any other relevant Crown agency or department is able to comply with the same. ACKNOWLEDGEMENTS OF THE STATUS, REPRESENTATIVE ROLE, MANDATE 21 Agencies are to ensure that acknowledgements of the status, representative role, mandate or rohe of Mäori Collectives are accurate, by checking with relevant authorities such as the Office of Treaty Settlements and Te Puni Kökiri. Agencies will be expected to maintain systems to ensure that signatories and acknowledgements are correct and to check with relevant authorities such as the Office of Treaty Settlements and Te Puni Kökiri in cases of doubt. CONSISTENCY Agencies should ensure consistency among and within their CMRI in respect of: compliance with policy and legislation acknowledgments of tangata whenua/mana whenua status recognition of rohe/areas of interest recognition of mandate fairness between parties in similar situations. Agencies are generally best-placed to ensure consistency within their CMRI in terms of compliance with policy and legislation, and fairness between parties in similar situations. Consistency in acknowledgements and recognition of status, rohe and mandate can be aided by seeking the advice of relevant agencies such as Te Puni Kökiri and the Office of Treaty Settlements, or through accessing the CMRI database. The CMRI database is a database and repository of all CMRI from across Government; the information contained in the database can be accessed through Te Puni Kökiri (for contact details refer to Phase 3: Formalisation and Execution of a CMRI). NEGOTIATION AND DRAFTING

24 COMMITMENTS BY OFFICIALS Undertakings in CMRI should be given only by signatories with the authority to implement them. Commitments in CMRI may bind the Crown legally or morally and should be made by those with the ability to operationalise them. Commitments on behalf of an Agency can generally only be given by the Chief Executive of that Agency or the responsible Minister, although additional signatories responsible for the day-to-day operation of the CMRI (for example, the departmental or regional manager) will also be appropriate. Commitments on behalf of the Crown as party to the CMRI should generally be avoided. However, if such commitments are made they should only be made by the responsible Minister. 22 Where the Agency is a regional office or the CMRI is negotiated by regional officials, the head office should be kept informed of the progress and content of the CMRI. It may be useful for Government departments to institute policies to ensure head office approval of regional CMRI. IMPACTS ON OTHER AGENCIES Agencies should ensure that where a CMRI creates obligations for other Agencies they are joined in the CMRI. COMMITMENTS BY THE MÄORI COLLECTIVE Undertakings from Mäori may be accepted only from people with the necessary authority and mandate to give them. NON-EXCLUSIVITY Agencies should avoid CMRI which limit the Government s ability to recognise third party interests or to interact with any citizens or their representatives. The interests of different Mäori Collectives sometimes overlap. This could give rise to claims (for example, of exclusive mandate) by one Mäori Collective that are disputed by others or by the Government. Agencies should ensure that they reserve the right to interact with any stakeholders and not give undertakings in a CMRI that might inadvertently create an exclusive relationship. It is desirable to: discuss whether the Agency has entered or intends to enter into other CMRI to work towards the same set of outcomes discuss any intention or potential of the Crown to deal with parties individually (where there are more than one Mäori Collective) or with non-parties consider whether the instrument is intended to affect any Waitangi Tribunal proceedings or Treaty settlements. For example: Nothing in this agreement shall affect the obligations of the Crown to also deal with each <party> individually and according to each <party s> own circumstances. Nor shall it affect the rights and obligations of the Crown and each of the parties in relation to any settlement agreements that are or have been reached in respect of the Wai XXX Claim. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

25 OTHER PROVISIONS Dispute resolution As with any relationship, it is better if the parties have an agreed process to resolve any difficulties. Outlining that process in the CMRI and clearly indicating that it should start with discussing problems or misunderstandings as soon as they become apparent, commits both parties to valuing the relationship. (Examples of resolution processes are included in the model Memoranda of Understanding, Appendix 4 and 5.) The form of a dispute resolution clause is best determined by the parties to the CMRI. An appropriate process is one that suits the needs of the relationship and the personalities involved. For example, dispute resolution clauses may set out an agreed formal process by which the parties will act in the case of a dispute, or the clause may reflect the desire of the parties to act at all times to preserve the relationship informally. 23 For example: The parties will act at all times in good faith and with the goal of preserving their relationship. However, in the event of a dispute the parties agree to the following process: a) In the first instance the agreed representatives of the parties will meet and attempt to resolve the dispute b) If, following (a), the dispute is not resolved the parties will engage in mediation through an agreed process. Confidentiality The confidentiality requirements of the parties to a CMRI should be well-understood and agreed by the parties. Often information generated by or shared within the relationship will be sensitive and/or the intellectual property of one of the parties. Understanding between the parties about appropriate use of the information is essential. For example: All information shared between the parties or created during the course of the relationship is confidential to the parties to this <CMRI> and will: a) only be used for the purpose for which it was gathered or created b) remain the property of the originating party/ies c) only be disclosed to third parties by mutual consent or where the release is required by law. The parties should also be clear about any constraints under which they act in relation to confidentiality. For instance, the Crown is limited in its ability to treat information confidentially by the provisions of the Official Information Act Mäori Collectives should be made aware of that constraint. The parties may wish to provide a process for inclusion of both parties in the release of information. NEGOTIATION AND DRAFTING

26 For example: The <Agency> is bound by the provisions of the Official Information Act In any instance where the <Agency> is bound to supply information in accordance with the Official Information Act, this will be done only after the <Mäori Collective> has been notified of the proposed release. Mäori Collectives may operate under similar constraints. For instance, if the Mäori Collective is a subsidiary, or business unit, of a larger entity it may have policy or reporting requirements relating to that entity. 24 Information sharing Both parties to a CMRI should have the same understanding about the extent of the information which they intend to share with the other party. Detailing the limits of the obligations of the parties in relation to information-sharing in the CMRI is a good way to avoid future misunderstandings and disputes. For example, the parties might wish to agree to share information in relation to a certain subject-matter or agree to generally share relevant information while retaining the right to keep certain information private. A CMRI might also set out how shared information may be used by the other party. For example: Subject to the constraints set out in this <CMRI>, the parties agree to provide each other with any information that relates to the subject-matter of this <CMRI>. The parties acknowledge that care needs to be taken when using such information and agree that the other party will be notified before any proposed release of the information to third parties. USE OF STATEMENTS ABOUT THE TREATY OF WAITANGI Definition of Treaty statement A Treaty statement is any statement acknowledged or used by an Agency in a CMRI that refers to or is based on the Treaty of Waitangi, including: references to the Treaty or its principles, including statutes statements intended to give effect to the Treaty commitments by agencies to act in a manner consistent with the Treaty, whether generally or with respect to particular functions or activities undertakings arising from the parties understanding of the effect of the Treaty on their relationship quotations from the text of the Treaty statements of Treaty concepts such as käwanatanga and tino rangatiratanga statements describing the circumstances surrounding the signing of the Treaty. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

27 Cabinet has directed that CMRI may include Treaty statements provided that: the agreed aim is to build or maintain a good relationship between the parties there is broad agreement between the parties on the role of the Treaty in their relationship and in Government (i.e. the Government s right to govern is accepted) the reciprocal nature of Treaty obligations is recognised and demonstrated in the agreement proposed Treaty commitments are relevant to the context of the CMRI and to the business of the relationship the Agency has explicitly considered how Treaty-based commitments will contribute to the objectives of the CMRI and how they will be achieved. CMRI in which the Agency deals with interests directly protected by the Treaty (e.g. fisheries, land) or which have Treaty clauses in their regulatory frameworks (e.g. Conservation, Health) may require quite specific Treaty references. Treaty references by Agencies, whose operations or interests do not have an obvious Treaty aspect or which are not subject to Treaty clauses in legislation, are likely to be more general. 25 The overall approach to guidance on Treaty statements Three sources of Treaty statements may be used to assist the drafting of CMRI: 1 approved statements of Government policy on the Treaty which are already in use in a variety of contexts including legislation, Government goals and policy frameworks 2 statements based on Treaty statements which the Government has previously used in submissions to the courts or the Waitangi Tribunal and which represent the Crown s understanding 3 statements drafted especially to meet the particular circumstances or relationship, which satisfy the conditions set out for such statements. (Treaty Statements approved by Cabinet are enclosed as Appendix 3.) Differences of interpretation There may sometimes be matters of importance to either party which might usefully be recorded within CMRI even though they are not agreed. There is room for recording some differences of view over the meaning and effect of the Treaty, as long as such views are: attributed to the particular party concerned are not so extreme as to undermine the basis for the CMRI or be otherwise unacceptable; for instance, in constituting a challenge to the Crown s sovereignty or its capacity to establish an effective legal system. References to Treaty breaches Agencies should not include statements in CMRI that: acknowledge breaches of the Treaty, unless by reference to a pre-existing Treaty settlement and then only in the precise language of the settlement refer to Waitangi Tribunal findings of breaches that have not been acknowledged by the Crown or contain apologies for breaches, even if an apology has already been delivered in the context of a Treaty settlement. NEGOTIATION AND DRAFTING

28 CMRI are intended to be forward looking and should avoid any risk of duplicating matters covered in a Treaty of Waitangi settlement process. Room for development of the CMRI policy on Treaty statements The Government accepts that the Treaty is a living document in the sense that policy on the meaning and implications of the Treaty will evolve over time, informed by the courts and the Waitangi Tribunal and in the course of discussion and agreement with Mäori. 26 There is a trade-off to be made between achieving national consistency and building relationships at the local level. The approvals process (see Phase 3, Formalisation and Execution) is intended to provide scope for Agencies to negotiate meaningfully with Mäori Collectives (i.e. as principals) by allowing them to depart from the CMRI policy framework in particular cases if this is deemed necessary to maintain good faith in relationships, and as they develop their understanding of the application of the Treaty, subject to noting and approval by Ministers. CONSISTENCY WITH POLICY FRAMEWORK CMRI Officials group The CMRI Officials group neither plays a role in negotiating CMRI nor intrudes in the relationships documented by them; it simply provides advice on whether draft CMRI are consistent with the CMRI policy framework. Cabinet has directed Agencies to seek advice from the CMRI Officials group regarding compliance with the policy framework. The Officials group is comprised of representatives from the Ministry of Justice and Te Puni Kökiri and is responsible for checking proposed CMRI for consistency with the policy framework before they are executed. The Agency should: submit its proposed CMRI to the Officials group for advice on consistency before it is executed include any explanatory material to help demonstrate that the CMRI is consistent with the policy framework if it is not obvious in the actual agreement. For example, an Agency might state that it has ensured the accuracy of the mandate of the Mäori Collective, or that the CMRI complies with the Agency s statutory obligations. If a proposed CMRI is not consistent with the policy framework, the Officials group will assist with revising the document. When the Officials group receives a proposed CMRI it will: send notice of receipt within one week by the same medium that it receives the CMRI determine whether a proposed CMRI is consistent with the policy framework and advise accordingly (generally within two to three weeks) advise the Agency if any delay is expected. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

29 Crown Law Advice In exceptional circumstances the Officials group may require Crown Law advice on a proposed CMRI. In such cases, the Officials group will discuss this further with the Agency, as the advice will need to be paid for by the originating Agency. CMRI that are consistent with the policy framework If the Officials group considers that the proposed CMRI is consistent with the policy framework, it will send confirmation to the originating party. Upon receipt of this advice the CMRI can be executed. CMRI that are inconsistent with the policy framework If the proposed CMRI is not consistent with the policy framework, the Officials group will: advise the Agency in writing work with the Agency to ensure that the CMRI reaches the required standard and arrange the process and timeframe for revisions with the Agency. 27 If, after advice from the Officials group, an Agency still wishes to execute a CMRI which is inconsistent with the policy framework, Cabinet has directed that it be submitted to the Policy Cabinet Committee (POL) for approval. This process is discussed in Phase 3. Multi-Agency CMRI Single CMRI that are signed by several Agencies will have wider resource and relationship implications for both the Crown and Mäori. Therefore, after receiving advice from the Officials group they should be considered and approved by Cabinet. CONTACT DETAILS Proposed CMRI can be submitted to the Officials group by two means. By mail to: Crown-Mäori Relationship Instruments Officials Group c/o Te Puni Kökiri, PO Box 3943, Wellington AND By to: cmriog@tpk.govt.nz NEGOTIATION AND DRAFTING

30 28 PHASE 3 APPROVAL AND EXECUTION CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

31 APPROVAL OF CMRI The approval process for CMRI includes: parties internal processes receipt by Agencies of advice from the Officials group after assessing the consistency of the CMRI proposal with the policy framework Cabinet approval (if required). Internal processes Parties may need to follow their own internal processes, such as approval by the Chief Executive or responsible Minister in the case of Agencies, before the formal approval and execution of a CMRI. 29 How parties coordinate these approval processes is at their discretion. However, it may be useful if Agencies obtain internal approval in principle for their CMRI before seeking advice from the CMRI Officials group regarding compliance with the policy framework. Consistency with CMRI policy framework Agencies are directed to seek advice from the CMRI Officials group regarding the consistency of their CMRI with the policy framework. This process is described in Phase 2. CMRI can be executed when the Officials group informs the Agency that their CMRI is consistent with the policy framework. Cabinet approval Should your Agency choose not to comply with the policy framework and advice from the CMRI Officials group, CMRI inconsistent with the policy framework can be submitted to POL for approval. Should your Agency take this option your Minister should submit a paper to Cabinet. The process for submitting inconsistent CMRI to POL is as follows: the responsible Minister presents a Cabinet paper to POL containing the following: details of how the agreement is inconsistent with the CMRI policy framework an explanation of why the CMRI is inconsistent with the framework and the reasons why Cabinet should approve the agreement in its submitted form a section on consultation with the CMRI Officials group concerning the agreement POL will make recommendations to Cabinet. For example, POL may recommend that the inconsistency is appropriate and that the CMRI should be executed, or that the CMRI should be varied to comply with the CMRI policy framework the recommendations of POL will be considered by Cabinet Cabinet will decide that the form of the CMRI is appropriate, or to vary the CMRI the Agency may execute the CMRI according to Cabinet s decision, but may need to re-negotiate any changes to the CMRI with the Mäori Collective. EXECUTION The execution of a CMRI is a significant event for both parties. Therefore, they may wish to consider some form of celebration on the execution of the agreement to reinforce the importance of the formalisation of their relationship. APPROVAL AND EXECUTION

32 CENTRAL REPOSITORY AND ANNUAL REPORTING A central repository and database of CMRI has been created within Te Puni Kökiri to maintain consistency of CMRI over time and across the state sector. The database will also assist the Ministry of Justice and Te Puni Kökiri to report annually to Cabinet on trends in CMRI and any parts of the CMRI policy framework that require review. The following sections set out the roles of Agencies in relation to the database. The Terms of Reference for use of the CMRI database, with full details of the conditions relating to its use, are attached as Appendix 6. Input of CMRI into database Cabinet has directed Agencies to send Te Puni Kökiri all new CMRI upon their execution for input into the CMRI database. 30 Agencies should provide Te Puni Kökiri both a hard copy and scanned electronic version of the original signed and executed CMRI for entry into the database. The signatures of the parties and any hand-written additions should be clearly visible on both versions. The hard copy of the CMRI should be submitted to: Crown-Mäori Relationship Instruments Database, c/o Te Puni Kökiri, PO Box 3943, Wellington; AND a scanned copy by to: cmridatabase@tpk.govt.nz Release and confidentiality of CMRI Release of all or part of a CMRI will be governed by the provisions of the Official Information Act Access to CMRI database by Agencies The CMRI database will enable officials to advise Agencies on issues relating to CMRI. For instance, access to the information will be available to ensure consistency in proposed CMRI relating to: an attribution of mandate to a Mäori Collective recognition of rohe acknowledgement of status obligations for the Crown with the same Mäori Collective obligations for the same Agency with different Mäori Collectives use of Treaty statements in CMRI. This advice is available by mail from: Crown-Mäori Relationship Instruments Officials Group, c/o Te Puni Kökiri, PO Box 3943, Wellington OR by from: cmriog@tpk.govt.nz Ongoing obligation of Agencies Agencies should inform the Officials Group at the above addresses when a CMRI has been terminated or expired. Revisions of existing CMRI should also be sent to the CMRI Officials group for advice on compliance with the policy framework before being submitted to the database to ensure that a comprehensive record of the commitments of Government is maintained. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

33 PHASE 4 EVALUATION, REVIEW AND RENEGOTIATION 31 EVALUATION, REVIEW AND RENEGOTIATION

34 The following is advice on: future-proofing CMRI in the face of potentially changing circumstances (for example, mitigating against effects of staff turnover or organisational restructuring) evaluating, reviewing and renegotiating agreements to meet the demands of changing relationships. 32 FUTURE-PROOFING YOUR CMRI Some parties have included clauses in their CMRI to future-proof them. Such clauses ensure that staff from both parties who work on or through the CMRI are obliged to maintain an intimate knowledge of: the contents of the CMRI its purpose the people and organisations involved in the relationship the CMRI documents. Robust processes to allow institutional knowledge to be passed on to new staff members are required for these clauses to have the desired effect. EVALUATION Both parties should evaluate their existing CMRI regularly, regardless of whether a formal review process is built into the CMRI. Parties to existing CMRI have found it desirable to ensure that both parties evaluate the performance of their CMRI against: its purpose its objectives the outcomes it is to produce. Experience has also shown it to be useful to consider whether the CMRI: continues to be mutually beneficial is achieving or has achieved what it was designed to achieve. If either party thinks the CMRI or relationship is not working as intended, procedures for review should be followed. Some CMRI will contain provisions for regular review. Parties to these should evaluate their CMRI individually prior to the scheduled review. Where the CMRI is to be reviewed on an ad-hoc basis by mutual agreement, a review process should be instigated if or when either party considers that the CMRI is not performing to its expectations. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

35 REVIEW Reviewing CMRI can be: regular and part of a formal review process, or informal and subject to mutual agreement by the parties. If either party considers that the CMRI is failing or has failed to achieve its purpose, consideration should be given to how these outcomes could be better achieved or whether a CMRI continues to be necessary. 33 Reviewing a CMRI requires both parties to consider: processes to be used for the review resources required. For CMRI that contain provisions for regular review, details of the processes and resources for review should have been factored into the preparation of, and be included in, the CMRI. For those CMRI that do not contain provisions for regular review and in which review would only take place according to agreement between the parties, consideration should be given to the processes and resources for review, should it be required. If during the course of a review the parties propose to make substantial changes or additions to the CMRI, the Agency should submit the revised agreement to the Officials group for advice regarding its compliance with the policy framework. If reviewing a CMRI that predated the development of the policy framework, the Agency should apply the framework and follow the approvals process detailed in Phase 3. RENEGOTIATION If the review process shows the CMRI to be failing to achieve its purpose, but parties still think it necessary or desirable, the negotiation process should be re-instigated. If the parties decide to renegotiate their CMRI, consideration must be given to the processes that were observed during the original negotiation phase. It is possible that it was the negotiation process itself that led to the CMRI being ineffective. If either party considers that the negotiation process adversely affected the ability of the CMRI to produce the desired outcomes, an alternative process should be proposed for mutual agreement by the parties. If, after review, both parties consider the CMRI to be effective they may still wish to renegotiate some aspect of the relationship or the CMRI. If so, agreement of both parties should be sought to undertake this renegotiation. EVALUATION, REVIEW AND RENEGOTIATION

36 34 APPENDICES WHAKAMANA INFLUENCE: INSPIRED BY THE MOUNTAIN STANDING TALL UPON THE LANDSCAPE, THIS PATTERN IS SYMBOLIC OF INFLUENCE. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

37 APPENDIX 1 CABINET REQUIREMENTS CHECKLIST This checklist will help you ensure that your CMRI complies with the Cabinet requirements. Further detail on each of these points is provided in the body of the Guidelines. Does your CMRI contain a clear statement of: who the parties are and who they represent, preferably with a legal description and reference to their accountabilities and relationships the purpose of the agreement definition of any terms liable to cause misunderstanding any commitments regarding outcomes, aspirations, deliverables or processes whether or not the agreement is intended to be legally binding upon the parties (in general they should not be) the duration of the agreement and/or a date for review the identity of the signatories, date the agreement is signed and date of the execution of the agreement? 35 Have you ensured that the commitments undertaken in your CMRI: are consistent with the Agency s statutory obligations do not devolve statutory obligations inappropriately or limit your ability to meet those obligations are only given by signatories with the authority to implement them? Have you taken care that: acknowledgments of the status, representative role, mandate or rohe of Mäori Collectives are accurate where your CMRI creates obligations for other Agencies, that they are joined in the CMRI, or if such obligations arise after the CMRI has been executed that the parties are notified of the details of the CMRI if you have included a statement referring to the Treaty of Waitangi in your CMRI, you have complied with advice regarding the use of Treaty statements on pages 24-25? Have you also ensured consistency among and within your CMRI in respect of: compliance with policy and legislation acknowledgements of status recognition of rohe/areas of interest recognition of mandate fairness between parties in similar situations? APPENDIX 1

38 RELATIONSHIP MANAGEMENT CHECKLIST This checklist will help you ensure that you consider a range of important relationship and operational matters when developing your CMRI. Further details are provided in the body of the Guidelines. 36 The CMRI documents a relationship. Therefore, the following should be taken into consideration: do both parties want the CMRI will your CMRI help develop or maintain a positive relationship have the views of the Mäori Collective been taken into account appropriately are both parties committed to the relationship created by the CMRI and to the outcomes sought under it are the outcomes expected of the CMRI clear to both parties and achievable is your CMRI an effective way for the Agency to accomplish its objectives/outcomes 2 will the CMRI assist the Mäori Collective to accomplish its goals does your CMRI have implications for the broader Crown-Mäori relationship including any Treaty relationship between the parties or the Government and Mäori in general how will these be dealt with will your CMRI impact on relationships with other stakeholders? Successful CMRI can require resources to be committed, including staff and time, as well as financial resources. Staff and Time do your staff have: the requisite experience to build an effective CMRI and sustain a good relationship, or the requisite empathy and skills to learn how to do this if neither, are the parties willing to build that capacity and skill-base? Financial Resources Has the Agency considered expenses relating to: staff allocated to the work development of the requisite understandings for the parties to operate effectively under the CMRI, such as cultural training for staff building technical capacity relating to the subject-matter of the CMRI for staff of both parties negotiating the CMRI operational aspects of the CMRI such as: regular meetings travel hosting expenses exchange of information? 2 These include the Key Government Goals to Guide the Public Sector in Achieving Sustainable Development, Department of Prime Minister and Cabinet (2003), and Statement of Government Intentions for an Improved Community-Government Relationship, issued December CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

39 APPENDIX 2 FLOW DIAGRAM: DEVELOPING A CROWN-MÄORI RELATIONSHIP INSTRUMENT Parties decide they want to establish or formalise their relationship with a CMRI 37 Parties negotiate and draft their CMRI Agency submits proposed CMRI to CMRI Officials group for advice on compliance CMRI complies with CMRI policy framework CMRI does not comply with CMRI policy framework CMRI Officials group informs the Agency that the CMRI complies CMRI Officials group advises the Agency that the CMRI does not comply Agency and CMRI Officials group negotiate compliance of CMRI with policy framework Parties execute CMRI Agency decides to seek Cabinet approval for CMRI Agency submits CMRI to POL CMRI sent to CMRI database and repository in Te Puni Kökiri POL makes recommendations to Cabinet Cabinet accepts or varies recommendations of POL Cabinet decides CMRI is in an appropriate form Cabinet decides CMRI should be varied APPENDIX 2

40 APPENDIX 3 CABINET APPROVED TREATY STATEMENTS 38 1 Statements of Treaty policy and obligations which have been previously approved by Government Provided such statements meet the general requirements of relevance and effectiveness, then they are permitted within CMRI. They include: clauses which refer to or note references to the Treaty in legislation statements, which recognise the Treaty, in Government goals and policy frameworks (for example, the Key Government Goals to Guide Public Sector Policy and Performance, Statement of Government Intentions for an Improved Community-Government Relationship) the 1989 Principles for Crown Action on the Treaty of Waitangi, which the Government has endorsed those recommendations of the 1988 Royal Commission on Social Policy which the Government has approved. Treaty-related provisions in statutes Use of statutory expressions within CMRI is subject to the condition that all general undertakings, including those derived from statute, be accompanied by statements of what these will mean in practical terms for the parties. 2 Treaty statements endorsed by the Crown The second category of Treaty statements allowed under the CMRI policy framework are those which repeat or closely reflect statements already made by the Crown in submissions to the courts or the Waitangi Tribunal. Below is a selection of such statements. Subject to all other requirements of the CMRI policy framework, these statements can also be used within CMRI. Statements which refer to the Treaty as the basis of Crown-Mäori relationships and as a founding document of New Zealand The Treaty of Waitangi establishes the unique relationship between the Crown and Mäori. The Treaty of Waitangi is a founding document of Government in Aotearoa/New Zealand. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

41 Treaty principles and concepts The Crown acknowledges that it has an obligation to act in an informed manner when it forms policy or acts in ways that affect Mäori interests. 39 The Crown acknowledges that it is under a duty of active protection in relation to Mäori rights and interests guaranteed pursuant to Article 2. The parties each have an obligation to act in good faith, fairly, reasonably and honourably towards the other. Central to the Treaty relationship and implementation of Treaty principles is a common understanding that Mäori will have an important role in implementing (policies/services) for Mäori and that the Crown and Mäori will relate to each other in good faith and with mutual respect, cooperation and trust. In order to recognise and respect the principles of the Treaty of Waitangi, the parties have agreed to establish (mechanisms/processes/structures) to enable (the Mäori Collective) to contribute to the (planning/policy development/decision-making/delivery) of (the Agency s) specified (policies/functions/services). In order to recognise the Crown s obligations to act in an informed manner, (the Agency) will (provide information/seek input/give adequate time for response/consider submissions) on the exercise of (particular) functions. APPENDIX 3

42 3 Treaty statements developed by the parties The third category of Treaty statements approved for use in CMRI are those developed by the parties to meet particular requirements of their relationship. The central CMRI advice and vetting process (see Phase 2) will ensure that all such statements are assessed in accordance with the requirements of the CMRI policy framework. 40 In addition to the general requirements of the CMRI policy framework, Treaty statements developed by parties to CMRI are subject to the following conditions: except as provided above, CMRI may not comment on constitutional principles or the constitutional status of the Treaty quotations from the text of the Treaty are permitted, although it is preferable to include the full text. The authoritative Mäori and English versions of the Treaty text are contained in the Treaty of Waitangi Act 1975 statements relating to the circumstances surrounding the signing of the Treaty may be included by the Mäori Collective provided that these are attributed to that party and do not give rise to expectations of the Crown agencies should avoid trying to define or interpret the meaning of the Treaty in the abstract. What is important is that they are clear as to its effect on their own relationship with the Mäori Collective. General statements should be limited to those approved in this paper terms which interpret such Treaty concepts as käwanatanga, rangatiratanga or taonga may be used provided that their meaning is clearly agreed between the parties. General commitments to observe Treaty principles, including those taken from legislation, must not be used unless accompanied by statements of what these will mean in the context of the particular CMRI. This means that commitments to act in particular ways because of the Treaty may be included in CMRI, provided that: the commitments require clearly defined conduct it is generally not appropriate for an agency to commit to act in accordance with the Treaty in the exercise of its functions without greater specification the commitments are specific to the particular interests of the parties and the context of their agreement they should not relate to matters outside the immediate context of the agreement and should not impose obligations or expectations on third parties the commitments are consistent with applicable statutes and policies, and are compatible with all other commitments between Mäori and the Crown any legal or statutory constraints on the Agency which may have a bearing on the agreement are explicitly noted the reciprocal obligations of the Treaty, in which rights and duties flow both ways between the parties, are explicitly included and agreed references to iwi-specific versions of rangatiratanga such as Ngä Raurutanga or Ngäti Poroutanga have been used in some Treaty settlements and are acceptable provided their meaning is clear to both parties and explained in the CMRI. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

43 APPENDIX 4 MODEL CMRI FOR AGENCIES The following model CMRI is illustrative of the principles expressed in these Guidelines. It is not intended to be used as a template. CMRI should reflect the particular circumstances and needs of the parties to them. MEMORANDUM OF UNDERSTANDING between <the Mäori Collective> and <the Agency> 41 Date of execution Parties 1. <The Mäori Collective> <The Mäori Collective> is represented under this Memorandum of Understanding ( MOU ) by <for example, the name of the Rünanga (Council) or Trust Board or iwi organisation> which acts in the interests of all members of <the Mäori Collective> living within te rohe o (the area of) <the Mäori Collective>. Attached as Schedule A is a map defining the area agreed to by the parties as te rohe o <the Mäori Collective> for the purposes of this MOU. This MOU is signed by te Kaiwhakahaere and the Chief Executive on behalf of <the Mäori Collective>. 2. <The Agency> (represented by the Minister <of, or responsible for, the Agency>) <The Agency> is represented under this MOU by the Minister <of, or responsible for, the Agency> ( the Minister ), acting through <the Agency> ( the Ministry or the Agency ). The Minister has statutory responsibility under the <name of the Act> for the <for example, health/education needs of Mäori>. <The Agency> also has statutory rights and obligations under the <name of the Act> to improve <for example, health/education outcomes for Mäori>. This MOU is signed by the Minister and the Chief Executive of <the Agency>. Purpose of this MOU 3. This agreement sets out the framework for an ongoing relationship between <the Agency> and <the Mäori Collective>. 4. The purpose of this agreement is to record the mutual commitment of the parties: (1) to work together in good faith to safeguard and promote the mutual interests of the parties in improving <for example, health/educational> outcomes for the people of <the Mäori Collective>; (2) to address any conflict or tension openly and constructively; and (3) to act in ways that enhance the mana (prestige/dignity) of both parties. Legal Effect 5. This MOU is not legally binding and does not create a legal relationship. APPENDIX 4

44 42 Goals of the Relationship 6. The parties commit to the following goals for the relationship under this MOU: (1) to create and foster a high trust environment which allows the parties to work together while growing within their own tikanga (customs, obligations and conditions) and pursuing their own interests and priorities; (2) to provide a framework for the parties and Government to work together towards improving <for example, health/ educational> outcomes by <for example: (i) efficient use of resources; (ii) effective representation>. Principles of the Relationship 7. The following principles will guide the relationship: (1) acknowledgement of the shared interests of the parties in the development and promulgation of policy and legislation in the <for example, health/education> sector that benefits the people of <the Mäori Collective>; (2) acknowledgement of the Crown s interest in the development and promulgation of policy and legislation on behalf of the public at large and in managing the allocation of public financial resources; (3) commitment to the following values in the conduct of the relationship: (i) Autonomy (Rangatiratanga): Recognising that each partner will have different lines of accountability. Enabling each party to develop and grow in its own way while recognising and acknowledging difference; (ii) Unity (Kötahitanga): Agreement to work together towards a shared vision; and (iii) Goodwill (Manaakitanga): A commitment to work together within an environment of trust, respect and generosity towards each other. Recognising and understanding the capabilities and constraints each party brings to the relationship. Treaty of Waitangi 8. The parties acknowledge that the Treaty of Waitangi is a founding document of Aotearoa/New Zealand and as such lays an important foundation for the relationship between the Crown and Mäori. The parties wish to record their agreed understanding of their respective rights and obligations in the context of this MOU: (1) that <the Mäori Collective> exercises responsibilities for its people in relation to ensuring improvement in <for example, health/educational> outcomes; (2) that the Crown exercises käwanatanga (governance), meaning that it is required to make decisions that take account of the interests of all New Zealanders in achieving <e.g. health/ education> outcomes; (3) that decisions made by the Minister and <the Agency> on behalf of the Crown will require a balance to be struck between these considerations; and (4) that the parties will act towards one another at all times reasonably and in good faith. Processes for Working Together 9. The relationship will be given effect to by a programme of regular consultation and information-sharing between the parties. 10. Consultation will consist of meetings on an annual basis between the Chief Executives of <the Mäori Collective> and <the Agency> and bi-annual meetings between officials acting on behalf of the parties. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

45 Resourcing 11. Costs associated with meeting for the purposes of this MOU, including travel, will be shared by the parties. Statutory and Contractual Obligations 12. The parties acknowledge that <the Agency> is a <Government department/crown agency> and that this MOU will not require the Ministry to act in any way contrary to its obligations pursuant to Ministerial or Cabinet direction, or under its statutory responsibilities, or pursuant to any contractual obligations it has established with other parties. 13. The parties further agree that they will take all steps within their power to ensure that <the Agency> is able to comply with the same. 43 Non-exclusive Relationship 14. <The Mäori Collective> acknowledges the agreements under this MOU do not create an exclusive relationship and the Minister and <the Agency> may develop other appropriate relationships. Representations 15. The parties agree that they will not make any statement on the other s behalf to any third party without the express authorisation of the other party. Confidentiality 16. The parties agree that unless otherwise required by law or by mutual agreement, that they will keep confidential all information acquired as a result of this agreement. 17. The parties specifically acknowledge that information relating to or produced by the relationship may be required to be released under the Official Information Act Review and Variation of MOU 18. This MOU records a commitment to a long-term ongoing relationship. The parties acknowledge that over time the nature and focus of the relationship will evolve to reflect changing circumstances. Therefore, the parties will meet solely for the purpose of reviewing this MOU every three years, or otherwise as mutually agreed. 19. The parties may at any time and by mutual agreement amend this agreement to reflect: (1) changes to the goals of the relationship as they reflect changing circumstances; and (2) any other changes both parties agree are necessary. Termination of Memorandum 20. This memorandum may be terminated by one party giving 60 days notice to the other, or by mutual agreement at any time. Dispute Resolution 21. The parties will act at all times in good faith and with the goal of preserving their relationship. However, in the event of a dispute the parties agree to the following process: (1) in the first instance the agreed representatives of the parties will meet and attempt to resolve the dispute; (2) if following (1) the dispute is not resolved the parties will engage in mediation through an agreed process. APPENDIX 4

46 Term of MOU 22. This MOU: (1) commences upon signing by both parties; and (2) may be terminated by the mutual agreement of the parties or by either party giving 60 days notice of termination to the other. Execution Date: Date: 44 Minister <of, or responsible for, the Agency> Te Kaiwhakahaere o <the Mäori Collective> Witness Witness Chief Executive; <the Agency> Chief Executive; <Mäori Collective> Witness Witness CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

47 APPENDIX 5 MODEL CMRI FOR CROWN ENTITIES The following model CMRI is illustrative of the principles expressed in these Guidelines. It is not intended to be used as a template. CMRI should reflect the particular circumstances and needs of the parties to them. MEMORANDUM OF UNDERSTANDING between <the Mäori Collective> and <a Crown entity> Parties 1. <The Mäori Collective> <Mäori Collective> is a charitable trust incorporated under the Incorporated Societies Act <Mäori Collective> provides <for example, health/education> services for Mäori in the <specific region> and is a representative of <group of people/iwi> for the purpose of improving their <for example, health/educational> outcomes <The Crown entity> <Crown entity> is established and constituted under the <Crown entity Act>. The statutory role of <Crown entity> is to improve outcomes in the <for example, health/education> sector. <Crown entity> provides policies, programmes and funding in furtherance of this objective. Purpose 3. The purpose of this memorandum is to assist <Crown entity> to meet the needs of its Mäori stakeholders in the <specific> region by providing opportunities for <Mäori Collective> to influence policies and programmes developed by <Crown entity>, as they impact on Mäori within the <specific region>. Acknowledgements of Parties 4. The parties acknowledge: (1) that te Tiriti o Waitangi/the Treaty of Waitangi is a founding document of Aotearoa/New Zealand and lays an important foundation for the relationships between the Crown and Mäori; (2) that the role of <Crown entity> as defined by statute benefits from the input of its relevant stakeholders, in this case Mäori in the <specific region>; (3) that the relationship created by this memorandum is not an exclusive one and that both parties reserve the right to create or maintain relationships with any other group that may assist them in the furtherance of their respective objectives; (4) that this memorandum does not alter or diminish <Crown entity s> statutory powers and obligations under the <Crown entity Act> or any other statute in any way; (5) that the relationship developed in this memorandum may also lead to the development of contracts for the provision of relevant services but that this memorandum is not developed in this expectation. Any such contracts that may be developed will form separate legal documents but will be attached as schedules to this memorandum; and (6) that this memorandum is not legally enforceable, but that this does not diminish the intention of the parties to comply with the terms and conditions of this memorandum. Agreement of Parties 5. The parties agree that they will: (1) work together to improve <for example, health/education> outcomes in the <specific region>; APPENDIX 5

48 46 (2) share information as it relates to the subject-matter of this memorandum; (3) mutually support the endeavours of the other; and (4) act at all times in good faith and with good intent. 6. <Mäori Collective> further agrees that it will: (1) assist <Crown entity> to identify problems with its policies and programmes related to Mäori in the <specific region>; (2) provide <Crown entity> with advice on developing solutions to any problems; and (3) provide <Crown entity> with advice on matters of protocol and tikanga (customs, obligations and conditions). 7. <Crown entity> further agrees that it will: (1) take account of any information and advice provided by <Mäori Collective>; (2) provide <Mäori Collective> with opportunities to contribute to <Crown entity s> decision-making processes, where the decisions are relevant to the subject matter of this memorandum; and (3) keep <Mäori Collective> informed about relevant policies and programmes, including the outcome of any decision-making process. Disclosure of Information 8. Any information exchanged under this memorandum remains the property of the originating party and will be kept confidential to the parties. Such information will only be disclosed with the prior approval of the relevant party and/or according to law. Execution of Memorandum 9. This memorandum comes into effect on Review of Memorandum 10. This memorandum will be reviewed one year from the date of execution. Termination of Memorandum 11. This memorandum may be terminated by one party giving 60 days notice to the other, or by mutual agreement at any time. Execution Signed this day of 2009 Signed this day of 2009 by by Chief Executive of <Crown entity> Chief Executive of <Mäori Collective> Before witnesses: Before witnesses: Name of Witness 1 Name of Witness 1 Name of Witness 2 Name of Witness 2 CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

49 APPENDIX 6 TERMS OF REFERENCE FOR THE CMRI DATABASE 1 Underlying Authority On 2 August 2004 after consideration of the recommendations of POL on the Crown-Mäori Relationship Instruments policy framework, Cabinet: 1.1 agreed to the creation of a central repository and database within Te Puni Kökiri of all CMRI to: advise Ministers and Agencies on any issue in relation to particular CMRI, and specifically on issues of consistency among and within CMRI inform Government oversight of CMRI and review of the CMRI policy framework. 1.2 agreed that a copy of all CMRI be sent to Te Puni Kökiri to form part of the CMRI database as follows: every new CMRI every existing CMRI not already provided to the ad hoc Officials group, as previously directed by Cabinet during the development of the CMRI policy framework. 1.3 directed the Ministry of Justice and Te Puni Kökiri to report annually to POL on trends in CMRI and any parts of the CMRI policy framework needing review with the first report due by 31 October agreed to the following process for approving CMRI: the Ministry of Justice and Te Puni Kökiri should check proposed CMRI before execution to ensure that the proposed instruments comply with the policy framework and with other applicable policy and legislation. Non-complying CMRI would be submitted to POL for approval (CAB Min (04) 25/8) Use of Database 2.1 Based on the Cabinet directives, the database will be used to: provide Ministers with advice on any issue that arises in relation to individual CMRI, or on trends in CMRI advise agencies on issues in relation to CMRI they are developing, especially in relation to: issues of consistency relating to mandate, rohe, representative capacity; use of Treaty of Waitangi statements; and other important acknowledgements enable Government oversight of trends in CMRI enable yearly reporting on CMRI to POL enable officials from the Ministry of Justice and Te Puni Kökiri to perform their vetting function for draft CMRI. 2.2 Primarily for the purposes described at and 2.1.5, the database will be searchable to inform officials where CMRI have previously: attributed a mandate to a specific Mäori Collective over a people, area and/or issue recognised/defined a rohe/area of interest acknowledged tangata whenua or mana whenua status created obligations for the Crown with the same Mäori Collective created obligations for the same agency with different Mäori Collective included a Treaty statement in the CMRI. 2.3 The database will also be used by Te Puni Kökiri in its function as the Chief adviser to the Crown on its relationship with Mäori. APPENDIX 6

50 48 3 Responsibilities, Access and Release of Information 3.1 The database will be administered by Te Puni Kökiri. It will be set up both electronically and in hard-copy form. Access to the database will generally be restricted to officials from Te Puni Kökiri who are engaged in work for the purposes described at clauses and 2.3 above. 3.2 A permanent Crown-Mäori Relationship Instruments Officials group will be constituted, made up of officials from the Ministry of Justice and Te Puni Kökiri. The Officials group will have the responsibility of using the database to check consistency among and between CMRI. The information contained in the database will be accessed by an Officials group member where they are engaged in work for the purposes described at clauses above. Ministry of Justice officials will gain this access through responsible officials at Te Puni Kökiri. 3.3 Other persons able to gain access to the database through Te Puni Kökiri officials will be: parties to CMRI, to their own CMRI and only through their designated representatives the Crown Law Office, to advise on matters in relation to CMRI Government agencies, conditional on the agreement of the parties to the CMRI persons to whom the release of information is required by law. 3.4 Release of information contained within the database will be governed by the provisions of the Official Information Act 1982 and the Privacy Act Te Puni Kökiri will notify the parties to the CMRI where a request for release under the Official Information Act 1982 is received and of the outcome of the request. 4 Deliverables 4.1 Where the Crown-Mäori Relationship Instrument Officials group receives: a request for advice on consistency among CMRI from an agency or a CMRI as part of the approvals process agreed by Cabinet, and may be aided by accessing the database, the Officials group will reply within 7 days of receipt with a statement of the expected timeframe a response will require. That timeframe will be determined by the Officials group, but will be reasonable taking into account available resources. 4.2 Te Puni Kökiri and the Ministry of Justice will report yearly to POL on trends in and issues for CMRI. The database will be used to aid this purpose. 5 Commencement and Review of Terms of Reference 5.1 Operation of these Terms of Reference will commence on promulgation of the Guidelines for CMRI. 5.2 These Terms of Reference will be reviewed one year after the commencement date. CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES

51 GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES