Crown-Maori Relationship Instruments - Guidelines ... - Te Puni Kokiri

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Crown-Maori Relationship Instruments - Guidelines ... - Te Puni Kokiri

INTRODUCTIONThe Government values the many productive working relationshipsit has with whänau, hapü, iwi and Mäori organisations in all forms.These Guidelines have been prepared to assist state sector agencies in3developing 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 Crownprocess 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 whenre-negotiating existing relationship instruments.Throughout the Guidelines reference to Government policy appears in shaded boxes. These areusually 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


6OVERVIEW OFMINIMUM STANDARDSAND GUIDELINESWHAKAMANA – 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


OVERVIEWIn developing and executing a CMRI there are generally four phases:• Phase 1: Contemplating a CMRI7• Phase 2: Negotiating, Drafting and Compliance Advice• Phase 3: Formalisation and Execution of a CMRI• Phase 4: Evaluation, Review and Renegotiation of a CMRIThese Guidelines have been structured with each phase in mind.PHASE 1: CONTEMPLATING A CMRIThis 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 ADVICEThis 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 policyframework from the Officials’ group.PHASE 3: FORMALISATION AND EXECUTION OF A CMRIThis 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 CMRIThis section includes:• advice on “future-proofing” your CMRI• the need for evaluation and review of your CMRI• the possibility of renegotiation.OVERVIEW


8PHASE 1CONTEMPLATINGA CMRICMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


In contemplating a CMRI the following three principles should guideyour 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.9PROMOTING A POSITIVE AND WORTHWHILE RELATIONSHIPBefore any Agency enters into a CMRI, it must consider whether the proposedinstrument can contribute in a genuine way to the promotion of a positive andworthwhile relationship for both parties, and whether the human and financialresources and commitment to the relationship are in place to ensure that theCMRI 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 thatthe views of the respective parties have been appropriately taken into account• both parties are committed to the relationship documented by the CMRI and to theoutcomes 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 Treatybasedrelationships or Government-Mäori relationships (observing that a Treaty relationshipbetween 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 shouldconsider whether developing a CMRI is appropriate or whether there are other ways of achievingthe same objective.Where the Mäori Collective is a representative body, the Agency should make every effort tounderstand the membership of the group, whether the Collective has authority to represent thegroup’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 PrimeMinister and Cabinet (2003), and Statement of Government Intentions for an Improved Community-Government Relationship,issued December 2001.CONTEMPLATING A CMRI


Agencies should be aware that the Crown may enter (or may have already entered) into CMRIwith different Mäori Collectives that have overlapping interests, boundaries or membership.Consistency is important. Therefore, Agencies should be confident that the membership andterritory represented by a particular Mäori Collective is consistent with who and what area itrepresents in other CMRI.10The 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 foradvice. Tühono (www.maori.org) Te Aka Kumara o Aotearoa (www.takoa.co.nz) andTe Kähui Mängai (www.tkm.govt.nz) are also useful resources to help establish or confirmthis information.RESOURCE IMPLICATIONSAgencies should consider whether the human and financial resources andcommitment to the relationship are in place to ensure that their CMRI operatesas intended for a sustained period, before entering into any CMRI.Staff and TimeParties to existing CMRI have found that developing and implementing a CMRI can requiresignificant 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 Collectiveor– 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; andindividuals establish personal ownership of the relationship and the CMRI, including capacity tohandle tasks appropriately and provide for succession needs. A clear avenue of contact for theMäori Collective and the ability to interact kanohi ki te kanohi (face-to-face) will facilitate astronger relationship between the parties and a more effective CMRI.FinancesFinancial resources will be required to develop and manage a CMRI. The resources available toboth parties should be considered in the development stage, especially if the CMRI is intendedto last for an extended period of time. Mäori Collectives can have very stretched human andfinancial resources. This may need to be reflected in the CMRI and Agencies may need tocontribute to the development and management of the CMRI accordingly.CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


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 particularMäori Collective)– building of technical capacity relating to the subject-matter of the CMRI for staff of theMäori 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.11COMMON THEMES (FROM DISCUSSIONS WITH PARTIES TO CMRI)The comments set out in this table illustrate the kinds of issues which parties to CMRIconsidered important or relevant to the development of effective CMRI.ThemeCapacity, resourcingand commitmentCommentThe capacity within Mäori Collectives is often spread very thin:financially and personnel-wise.Resources of Agencies can be limited and some may only enteragreements with Mäori on an “as needed” basis.Mätauranga (knowledge) is an important resource. Seek tounderstand what knowledge is being contributed by each party.Commitment levels on both sides should be equal andagreements should embody the principle of reciprocity.CMRI should be entered into with genuine intent, not forreasons perceived to be tokenistic (especially not as a statutory“tick-box” for interaction with Mäori). Agreements should bebased on the parties seeking solid outcomes. The Agency shouldconsider what benefit Mäori will get from the agreement, notjust what the Crown will gain.Succession planningWhile there is generally continuity of personnel on theMäori side, there can be difficulty in maintaining effectiverelationships between parties to CMRI and institutionalknowledge as staff move through the public service. Goodinternal processes can assist this.CONTEMPLATING A CMRI


ThemeBenefits of CMRICommentRelationships based on a CMRI can also extend to otheraspects of an Agency’s work, and give each party a channel ofcommunication into the other.Some Agencies feel these agreements are beneficial because theyget the input they need to make decisions more effectively.12Trust and good willTrust and good will are vital to relationships and can only bebuilt up over time. This includes developing understanding ofand respect for the other party’s particular circumstances andits social and cultural context.The efficacy of the agreement is dependent on the health ofthe relationship between the parties.Crown constraints and risks are more often accepted when theyare made clear in the context of acting in good faith and intent.The drafting process should have equal input by both sides inorder to assist in creating trust and enhancing the relationship.Appropriate levelof interactionAppropriate levels of communication and interaction areimportant. For example, a Crown official who does not have“signing-off” authority should not approach the Chief Executiveof a Mäori Collective to develop or discuss a CMRI.The Agency should gain an understanding of the internalstructures of the Mäori Collective (which can parallel those ofthe Crown) and work within these structures.It is important to have clear avenues of communication at alllevels between the Agency and Mäori Collective. For example,where an agreement has sign-off at a high level, both partiesneed to ensure that the agreement is working well lower downat the operational level.Significance ofagreements to MäoriCMRI may represent commitments to the tipuna and futuregenerations.When a Mäori Collective enters into a CMRI, it may be offeringthe mana of that group and expect the same commitment fromthe Agency.Treaty underpinsthe agreementsEven if not explicitly stated within the agreement, Mäori maysee the partnership inherent in the Treaty of Waitangi as thebasis of the agreement (especially apparent with iwi).CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


THE RELATIONSHIPBuilding a strong relationshipOnce both parties have decided that they want a CMRI, they will need toinvest in establishing a strong relationship and CMRI by building:• trust and goodwill• mutual understanding• respect for the differences between them.15Strong relationships are built over time, however, both parties should consider how they canstrengthen the relationship when initiating, drafting, executing or renewing a CMRI.Building trust and goodwillBuilding 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 andunderstanding are the most important steps.Understanding each otherIt is important for both parties to a CMRI to understand the other’s internal processes andpractices. In some cases a facilitator has been useful, especially early in the relationship. Thisis 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 willalways be appropriate.The Agency should attempt to understand the particular circumstances of the MäoriCollective and its social and cultural context. Examples of where understanding will be mostimportant 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 theCMRI, 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 andunder the CMRI.NEGOTIATION AND DRAFTING


It is important that both parties understand what the other can and cannot do in the context ofthe relationship and any potential CMRI. This includes any statutory and other constraints. Bestpractice 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 therequirements 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 understandingof the requirements of the CMRI policy framework.16Lines of communication and contact within the Agency should be made clear to the MäoriCollective very early and when and as they change.Respecting differencesCompromise on particular issues is not always possible or appropriate. Sometimes the prioritiesand restraints of the Agency are incompatible with the commitments and beliefs of the MäoriCollective. In these circumstances, both parties should attempt to understand the reasonsfor the differences between them and respect those differences. In some matters, such asunderstandings of the Treaty of Waitangi, it may be possible to recognise differences betweenthe parties in the CMRI (see the section on Use of Treaty statements, Phase 2, Negotiatingand Drafting).Parties need to exercise judgment regarding situations where a difference is so fundamental thata CMRI is not possible or appropriate.DRAFTING YOUR CMRIDrafting CMRI should be collaborative to allow for genuine input by both parties and toensure the continuation of a shared sense of vision for the agreement. Agencies should avoidpresenting Mäori Collectives with CMRI that are largely complete. Basic template agreementsmay be useful, but it should be apparent to both parties that the CMRI can be individualised tosuit the circumstances, the relationship and its particular purpose. Appendices can be a usefulmeans of including specific information or protocols.Cabinet has decided that every CMRI should demonstrate certain characteristics. The shadedboxes 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-Sharingclauses in CMRI.CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


PURPOSEAll 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 partiesin a co-operative and joint project for the ecological restoration of the area.18The Agency should be clear whether it is developing the CMRI as part of fulfillingTreaty of Waitangi obligations or not. See the section on Use of Treaty Statements.DEFINITION OF TERMSAll CMRI are to include clear statements of definition of any terms liable tocause misunderstanding.Both parties must be clear about the meaning of terms used in a CMRI and definitions shouldbe used where necessary. It should be made clear that the definition of some terms in CMRIrefer to the context of the particular CMRI and relationship, and do not apply to other partsof the Crown.“Partnership” in particular can mean many different things and should generally be avoided inCMRI; if it is used it should be defined very carefully.Use of Te Reo MäoriThe use of te reo Mäori (the Mäori language) in CMRI is entirely appropriate, but mutualunderstanding of the content is essential. Where text is included in te reo Mäori, it should alsobe translated into English, for example “kanohi ki te kanohi” (face to face). A section definingterms used within the instrument may be useful where the use of a word-for-word translationdoes not offer a full understanding of the concept.For example:Rangatiratanga - Autonomy. Recognising that each party will have different lines ofaccountability. Enabling each party to develop and grow in its own way while recognising andacknowledging 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 andconstraints each party brings to the relationship.Where an instrument is written in both Mäori and English, it is useful to state how the twodocuments will work together; for instance, which document has precedence if there is conflict.CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


For example:The acknowledges that the is a Government department, andthat this agreement will not require the to act in any way contrary to its obligationspursuant to Ministerial or Cabinet direction, or under relevant legislation, or pursuant to anycontractual obligations it has established with other parties.The agrees that nothing in this agreement shall be taken to mean thatthe or any other Crown agency or department in any way abrogates its statutory orcontractual responsibilities. The further agrees that it will take all stepswithin its power to ensure that the and any other relevant Crown agency or departmentis able to comply with the same.ACKNOWLEDGEMENTS OF THE STATUS, REPRESENTATIVE ROLE,MANDATE21Agencies are to ensure that acknowledgements of the status, representative role,mandate or rohe of Mäori Collectives are accurate, by checking with relevantauthorities such as the Office of Treaty Settlements and Te Puni Kökiri.Agencies will be expected to maintain systems to ensure that signatories and acknowledgementsare correct and to check with relevant authorities such as the Office of Treaty Settlements andTe Puni Kökiri in cases of doubt.CONSISTENCYAgencies 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 ofcompliance with policy and legislation, and fairness between parties in similar situations.Consistency in acknowledgements and recognition of status, rohe and mandate can be aidedby seeking the advice of relevant agencies such as Te Puni Kökiri and the Office of TreatySettlements, or through accessing the CMRI database. The CMRI database is a database andrepository of all CMRI from across Government; the information contained in the databasecan be accessed through Te Puni Kökiri (for contact details refer to Phase 3: Formalisation andExecution of a CMRI).NEGOTIATION AND DRAFTING


COMMITMENTS BY OFFICIALSUndertakings in CMRI should be given only by signatories with the authority toimplement them.Commitments in CMRI may bind the Crown legally or morally and should be made by those withthe ability to operationalise them. Commitments on behalf of an Agency can generally onlybe given by the Chief Executive of that Agency or the responsible Minister, although additionalsignatories responsible for the day-to-day operation of the CMRI (for example, the departmentalor regional manager) will also be appropriate. Commitments on behalf of “the Crown” as partyto the CMRI should generally be avoided. However, if such commitments are made they shouldonly be made by the responsible Minister.22Where the Agency is a regional office or the CMRI is negotiated by regional officials, the headoffice should be kept informed of the progress and content of the CMRI. It may be useful forGovernment departments to institute policies to ensure head office approval of regional CMRI.IMPACTS ON OTHER AGENCIESAgencies should ensure that where a CMRI creates obligations for other Agenciesthey are joined in the CMRI.COMMITMENTS BY THE MÄORI COLLECTIVEUndertakings from Mäori may be accepted only from people with the necessaryauthority and mandate to give them.NON-EXCLUSIVITYAgencies should avoid CMRI which limit the Government’s ability to recognisethird 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 orby the Government. Agencies should ensure that they reserve the right to interact with anystakeholders and not give undertakings in a CMRI that might inadvertently create an exclusiverelationship.It is desirable to:• discuss whether the Agency has entered or intends to enter into other CMRI to work towardsthe same set of outcomes• discuss any intention or potential of the Crown to deal with parties individually (where thereare more than one Mäori Collective) or with non-parties• consider whether the instrument is intended to affect any Waitangi Tribunal proceedings orTreaty settlements.For example:Nothing in this agreement shall affect the obligations of the Crown to also deal with each individually and according to each own circumstances. Nor shall it affect the rights andobligations of the Crown and each of the parties in relation to any settlement agreements that areor have been reached in respect of the Wai XXX Claim.CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


OTHER PROVISIONSDispute resolutionAs with any relationship, it is better if the parties have an agreed process to resolve anydifficulties. Outlining that process in the CMRI and clearly indicating that it should start withdiscussing problems or misunderstandings as soon as they become apparent, commits bothparties to valuing the relationship. (Examples of resolution processes are included in the modelMemoranda of Understanding, Appendix 4 and 5.)The form of a dispute resolution clause is best determined by the parties to the CMRI. Anappropriate 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 theparties will act in the case of a dispute, or the clause may reflect the desire of the parties to actat all times to preserve the relationship informally.23For 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 resolvethe disputeb) If, following (a), the dispute is not resolved the parties will engage in mediation through anagreed process.ConfidentialityThe confidentiality requirements of the parties to a CMRI should be well-understood and agreedby the parties.Often information generated by or shared within the relationship will be sensitive and/or theintellectual property of one of the parties. Understanding between the parties about appropriateuse of the information is essential.For example:All information shared between the parties or created during the course of the relationshipis confidential to the parties to this and will:a) only be used for the purpose for which it was gathered or createdb) remain the property of the originating party/iesc) 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 toconfidentiality. For instance, the Crown is limited in its ability to treat information confidentiallyby the provisions of the Official Information Act 1982. Mäori Collectives should be made awareof that constraint. The parties may wish to provide a process for inclusion of both parties in therelease of information.NEGOTIATION AND DRAFTING


For example:The is bound by the provisions of the Official Information Act 1982. In any instancewhere the is bound to supply information in accordance with the Official InformationAct, this will be done only after the has been notified of the proposed release.Mäori Collectives may operate under similar constraints. For instance, if the Mäori Collectiveis a subsidiary, or business unit, of a larger entity it may have policy or reporting requirementsrelating to that entity.24Information sharingBoth parties to a CMRI should have the same understanding about the extent of theinformation which they intend to share with the other party. Detailing the limits of theobligations of the parties in relation to information-sharing in the CMRI is a good way toavoid future misunderstandings and disputes. For example, the parties might wish to agree toshare information in relation to a certain subject-matter or agree to generally share relevantinformation while retaining the right to keep certain information private. A CMRI might also setout how shared information may be used by the other party.For example:Subject to the constraints set out in this , the parties agree to provide each other with anyinformation that relates to the subject-matter of this .The parties acknowledge that care needs to be taken when using such information and agree thatthe other party will be notified before any proposed release of the information to third parties.USE OF STATEMENTS ABOUT THE TREATY OF WAITANGIDefinition of Treaty statementA Treaty statement is any statement acknowledged or used by an Agency in aCMRI 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 theTreaty 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 ofthe Treaty.CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


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 relationshipand 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 ofthe relationship• the Agency has explicitly considered how Treaty-based commitments will contribute to theobjectives 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 operationsor interests do not have an obvious Treaty aspect or which are not subject to Treaty clauses inlegislation, are likely to be more general.25The overall approach to guidance on Treaty statementsThree 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 varietyof contexts including legislation, Government goals and policy frameworks2 statements based on Treaty statements which the Government has previously used insubmissions to the courts or the Waitangi Tribunal and which represent the Crown’sunderstanding3 statements drafted especially to meet the particular circumstances or relationship, whichsatisfy the conditions set out for such statements.(Treaty Statements approved by Cabinet are enclosed as Appendix 3.)Differences of interpretationThere may sometimes be matters of importance to either party which might usefully be recordedwithin CMRI even though they are not agreed. There is room for recording some differences ofview 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; forinstance, in constituting a challenge to the Crown’s sovereignty or its capacity to establish aneffective legal system.References to Treaty breachesAgencies should not include statements in CMRI that:• acknowledge breaches of the Treaty, unless by reference to a pre-existing Treaty settlementand then only in the precise language of the settlement• refer to Waitangi Tribunal findings of breaches that have not been acknowledged by theCrown or• contain apologies for breaches, even if an apology has already been delivered in the contextof a Treaty settlement.NEGOTIATION AND DRAFTING


CMRI are intended to be forward looking and should avoid any risk of duplicating matterscovered in a Treaty of Waitangi settlement process.Room for development of the CMRI policy on Treaty statementsThe Government accepts that the Treaty is a living document in the sense that policy on themeaning and implications of the Treaty will evolve over time, informed by the courts and theWaitangi Tribunal and in the course of discussion and agreement with Mäori.26There is a trade-off to be made between achieving national consistency and buildingrelationships 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 casesif this is deemed necessary to maintain good faith in relationships, and as they develop theirunderstanding of the application of the Treaty, subject to noting and approval by Ministers.CONSISTENCY WITH POLICY FRAMEWORKCMRI Officials’ groupThe CMRI Officials’ group neither plays a role in negotiating CMRI nor intrudes in therelationships documented by them; it simply provides advice on whether draft CMRI areconsistent with the CMRI policy framework.Cabinet has directed Agencies to seek advice from the CMRI Officials’ group regardingcompliance with the policy framework. The Officials’ group is comprised of representatives fromthe Ministry of Justice and Te Puni Kökiri and is responsible for checking proposed CMRI forconsistency with the policy framework before they are executed.The Agency should:• submit its proposed CMRI to the Officials’ group for advice on consistency before itis executed• include any explanatory material to help demonstrate that the CMRI is consistent with thepolicy framework if it is not obvious in the actual agreement. For example, an Agency mightstate that it has ensured the accuracy of the mandate of the Mäori Collective, or that theCMRI complies with the Agency’s statutory obligations.If a proposed CMRI is not consistent with the policy framework, the Officials’ group will assistwith 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 adviseaccordingly (generally within two to three weeks)• advise the Agency if any delay is expected.CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


Crown Law AdviceIn exceptional circumstances the Officials’ group may require Crown Law advice on a proposedCMRI. In such cases, the Officials’ group will discuss this further with the Agency, as the advicewill need to be paid for by the originating Agency.CMRI that are consistent with the policy frameworkIf the Officials’ group considers that the proposed CMRI is consistent with the policyframework, it will send confirmation to the originating party. Upon receipt of this advice theCMRI can be executed.CMRI that are inconsistent with the policy frameworkIf 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.27If, after advice from the Officials’ group, an Agency still wishes to execute a CMRI which isinconsistent with the policy framework, Cabinet has directed that it be submitted to the PolicyCabinet Committee (POL) for approval. This process is discussed in Phase 3.Multi-Agency CMRISingle CMRI that are signed by several Agencies will have wider resource and relationshipimplications for both the Crown and Mäori. Therefore, after receiving advice from the Officials’group they should be considered and approved by Cabinet.CONTACT DETAILSProposed CMRI can be submitted to the Officials’ groupby two means.By mail to:Crown-Mäori Relationship Instruments Officials’ Groupc/o Te Puni Kökiri, PO Box 3943, WellingtonANDBy email to: cmriog@tpk.govt.nzNEGOTIATION AND DRAFTING


28PHASE 3APPROVAL ANDEXECUTIONCMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


APPROVAL OF CMRIThe approval process for CMRI includes:• parties’ internal processes• receipt by Agencies of advice from the Officials’ group after assessingthe consistency of the CMRI proposal with the policy framework• Cabinet approval (if required).Internal processesParties may need to follow their own internal processes, such as approval by the ChiefExecutive or responsible Minister in the case of Agencies, before the formal approval andexecution of a CMRI.29How parties coordinate these approval processes is at their discretion. However, it may be usefulif Agencies obtain internal approval “in principle” for their CMRI before seeking advice from theCMRI Officials’ group regarding compliance with the policy framework.Consistency with CMRI policy frameworkAgencies are directed to seek advice from the CMRI Officials’ group regarding the consistencyof their CMRI with the policy framework. This process is described in Phase 2. CMRI can beexecuted when the Officials’ group informs the Agency that their CMRI is consistent with thepolicy framework.Cabinet approvalShould your Agency choose not to comply with the policy framework and advice from the CMRIOfficials’ group, CMRI inconsistent with the policy framework can be submitted to POL forapproval. 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 whyCabinet 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 theinconsistency is appropriate and that the CMRI should be executed, or that the CMRI shouldbe 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 tore-negotiate any changes to the CMRI with the Mäori Collective.EXECUTIONThe execution of a CMRI is a significant event for both parties. Therefore, they may wishto consider some form of celebration on the execution of the agreement to reinforce theimportance of the formalisation of their relationship.APPROVAL AND EXECUTION


CENTRAL REPOSITORY AND ANNUAL REPORTINGA central repository and database of CMRI has been created within Te Puni Kökiri to maintainconsistency of CMRI over time and across the state sector. The database will also assist theMinistry of Justice and Te Puni Kökiri to report annually to Cabinet on trends in CMRI and anyparts of the CMRI policy framework that require review. The following sections set out the rolesof 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 databaseCabinet has directed Agencies to send Te Puni Kökiri all new CMRI upon their execution for inputinto the CMRI database.30Agencies should provide Te Puni Kökiri both a hard copy and scanned electronic version of theoriginal signed and executed CMRI for entry into the database. The signatures of the parties andany 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;ANDa scanned copy by email to: cmridatabase@tpk.govt.nzRelease and confidentiality of CMRIRelease of all or part of a CMRI will be governed by the provisions of the Official InformationAct 1982.Access to CMRI database by AgenciesThe CMRI database will enable officials to advise Agencies on issues relating to CMRI. Forinstance, access to the information will be available to ensure consistency in proposed CMRIrelating 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, WellingtonORby email from: cmriog@tpk.govt.nzOngoing obligation of AgenciesAgencies should inform the Officials’ Group at the above addresses when a CMRI has beenterminated or expired.Revisions of existing CMRI should also be sent to the CMRI Officials’ group for advice oncompliance with the policy framework before being submitted to the database to ensurethat a comprehensive record of the commitments of Government is maintained.CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


PHASE 4EVALUATION, REVIEWAND RENEGOTIATION31EVALUATION, REVIEW AND RENEGOTIATION


The following is advice on:• future-proofing CMRI in the face of potentially changingcircumstances (for example, mitigating against effects of staff turnoveror organisational restructuring)• evaluating, reviewing and renegotiating agreements to meet thedemands of changing relationships.32FUTURE-PROOFING YOUR CMRISome parties have included clauses in their CMRI to “future-proof” them. Such clauses ensurethat staff from both parties who work on or through the CMRI are obliged to maintain anintimate 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 arerequired for these clauses to have the desired effect.EVALUATIONBoth parties should evaluate their existing CMRI regularly, regardless of whether a formal reviewprocess is built into the CMRI. Parties to existing CMRI have found it desirable to ensure thatboth 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 reviewshould be followed. Some CMRI will contain provisions for regular review. Parties to theseshould evaluate their CMRI individually prior to the scheduled review. Where the CMRI is to bereviewed on an ad-hoc basis by mutual agreement, a review process should be instigated if orwhen either party considers that the CMRI is not performing to its expectations.CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


REVIEWReviewing 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 aCMRI continues to be necessary.33Reviewing 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 forreview should have been factored into the preparation of, and be included in, the CMRI. Forthose CMRI that do not contain provisions for regular review and in which review would onlytake place according to agreement between the parties, consideration should be given to theprocesses and resources for review, should it be required.If during the course of a review the parties propose to make substantial changes or additionsto the CMRI, the Agency should submit the revised agreement to the Officials’ group for adviceregarding its compliance with the policy framework.If reviewing a CMRI that predated the development of the policy framework, the Agency shouldapply the framework and follow the approvals process detailed in Phase 3.RENEGOTIATIONIf the review process shows the CMRI to be failing to achieve its purpose, but parties still think itnecessary or desirable, the negotiation process should be re-instigated.If the parties decide to renegotiate their CMRI, consideration must be given to the processesthat were observed during the original negotiation phase. It is possible that it was thenegotiation process itself that led to the CMRI being ineffective. If either party considersthat the negotiation process adversely affected the ability of the CMRI to produce the desiredoutcomes, 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 renegotiatesome aspect of the relationship or the CMRI. If so, agreement of both parties should be soughtto undertake this renegotiation.EVALUATION, REVIEW AND RENEGOTIATION


34APPENDICESWHAKAMANA – 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


APPENDIX 1CABINET REQUIREMENTSCHECKLISTThis 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 referenceto their accountabilities and relationshipsthe purpose of the agreementdefinition of any terms liable to cause misunderstandingany commitments regarding outcomes, aspirations, deliverables or processeswhether 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 reviewthe identity of the signatories, date the agreement is signed and date of the executionof the agreement?35Have you ensured that the commitments undertaken in your CMRI:are consistent with the Agency’s statutory obligationsdo not devolve statutory obligations inappropriately or limit your ability to meetthose obligationsare 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 Collectivesare accuratewhere your CMRI creates obligations for other Agencies, that they are joined in the CMRI, orif such obligations arise after the CMRI has been executed that the parties are notified of thedetails of the CMRIif you have included a statement referring to the Treaty of Waitangi in your CMRI, you havecomplied 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 legislationacknowledgements of statusrecognition of rohe/areas of interestrecognition of mandatefairness between parties in similar situations?APPENDIX 1


RELATIONSHIP MANAGEMENTCHECKLISTThis checklist will help you ensure that you consider a range of important relationship andoperational matters when developing your CMRI. Further details are provided in the body ofthe Guidelines.36The CMRI documents a relationship. Therefore, the following should be taken intoconsideration:do both parties want the CMRIwill your CMRI help develop or maintain a positive relationshiphave the views of the Mäori Collective been taken into account appropriatelyare both parties committed to the relationship created by the CMRI and to the outcomessought under itare the outcomes expected of the CMRI clear to both parties and achievableis your CMRI an effective way for the Agency to accomplish its objectives/outcomes 2will the CMRI assist the Mäori Collective to accomplish its goalsdoes your CMRI have implications for the broader Crown-Mäori relationship including anyTreaty relationship between the parties or the Government and Mäori in general• how will these be dealt withwill your CMRI impact on relationships with other stakeholders?Successful CMRI can require resources to be committed, including staff and time, as well asfinancial resources.Staff and Timedo 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 thisif neither, are the parties willing to build that capacity and skill-base?Financial ResourcesHas the Agency considered expenses relating to:staff allocated to the workdevelopment of the requisite understandings for the parties to operate effectively underthe CMRI, such as• cultural training for staff• building technical capacity relating to the subject-matter of the CMRI for staff ofboth partiesnegotiating the CMRIoperational 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 PrimeMinister and Cabinet (2003), and Statement of Government Intentions for an Improved Community-Government Relationship,issued December 2001.CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


APPENDIX 2FLOW DIAGRAM: DEVELOPING ACROWN-MÄORI RELATIONSHIPINSTRUMENTParties decide they want to establish orformalise their relationship with a CMRI37Parties negotiate and draft their CMRIAgency submits proposed CMRI to CMRIOfficials’ group for advice on complianceCMRI complies withCMRI policy frameworkCMRI does not comply withCMRI policy frameworkCMRI Officials’ groupinforms the Agency thatthe CMRI compliesCMRI Officials’ group advisesthe Agency that the CMRI doesnot complyAgency and CMRI Officials’group negotiate compliance ofCMRI with policy frameworkParties execute CMRIAgency decides to seekCabinet approval for CMRIAgency submits CMRI to POLCMRI sent to CMRIdatabase and repositoryin Te Puni KökiriPOL makes recommendationsto CabinetCabinet accepts or variesrecommendations of POLCabinet decides CMRI isin an appropriate formCabinet decides CMRIshould be variedAPPENDIX 2


APPENDIX 3CABINET APPROVEDTREATY STATEMENTS381 Statements of Treaty policy and obligations which have been previouslyapproved by GovernmentProvided 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 (forexample, the Key Government Goals to Guide Public Sector Policy and Performance, Statementof Government Intentions for an Improved Community-Government Relationship)• the 1989 Principles for Crown Action on the Treaty of Waitangi, which the Governmenthas endorsed• those recommendations of the 1988 Royal Commission on Social Policy which theGovernment has approved.Treaty-related provisions in statutesUse of statutory expressions within CMRI is subject to the condition that all generalundertakings, including those derived from statute, be accompanied by statements of whatthese will mean in practical terms for the parties.2 Treaty statements endorsed by the CrownThe second category of Treaty statements allowed under the CMRI policy framework are thosewhich repeat or closely reflect statements already made by the Crown in submissions to thecourts or the Waitangi Tribunal. Below is a selection of such statements. Subject to all otherrequirements 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 afounding 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


Treaty principles and concepts“The Crown acknowledges that it has an obligation to act in an informed manner when it formspolicy 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 rightsand interests guaranteed pursuant to Article 2.”“The parties each have an obligation to act in good faith, fairly, reasonably and honourablytowards the other.”“Central to the Treaty relationship and implementation of Treaty principles is a commonunderstanding that Mäori will have an important role in implementing (policies/services) forMäori and that the Crown and Mäori will relate to each other in good faith and with mutualrespect, cooperation and trust.”“In order to recognise and respect the principles of the Treaty of Waitangi, the parties haveagreed to establish (mechanisms/processes/structures) to enable (the Mäori Collective) tocontribute 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 theexercise of (particular) functions.”APPENDIX 3


3 Treaty statements developed by the partiesThe third category of Treaty statements approved for use in CMRI are those developed by theparties to meet particular requirements of their relationship. The central CMRI advice andvetting process (see Phase 2) will ensure that all such statements are assessed in accordancewith the requirements of the CMRI policy framework.40In addition to the general requirements of the CMRI policy framework, Treaty statementsdeveloped by parties to CMRI are subject to the following conditions:• except as provided above, CMRI may not comment on constitutional principles or theconstitutional status of the Treaty• quotations from the text of the Treaty are permitted, although it is preferable to include thefull text. The authoritative Mäori and English versions of the Treaty text are contained in theTreaty of Waitangi Act 1975• statements relating to the circumstances surrounding the signing of the Treaty may beincluded by the Mäori Collective provided that these are attributed to that party and do notgive 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 theMäori Collective. General statements should be limited to those approved in this paper• terms which interpret such Treaty concepts as käwanatanga, rangatiratanga or taonga maybe used provided that their meaning is clearly agreed between the parties.General commitments to observe Treaty principles, including those taken from legislation, mustnot be used unless accompanied by statements of what these will mean in the context of theparticular CMRI. This means that commitments to act in particular ways because of the Treatymay be included in CMRI, provided that:• the commitments require clearly defined conduct – it is generally not appropriate for anagency 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 oftheir agreement – they should not relate to matters outside the immediate context of theagreement and should not impose obligations or expectations on third parties• the commitments are consistent with applicable statutes and policies, and are compatiblewith all other commitments between Mäori and the Crown• any legal or statutory constraints on the Agency which may have a bearing on the agreementare explicitly noted• the reciprocal obligations of the Treaty, in which rights and duties flow both ways betweenthe parties, are explicitly included and agreed• references to iwi-specific versions of rangatiratanga such as Ngä Raurutanga or NgätiPoroutanga have been used in some Treaty settlements and are acceptable provided theirmeaning is clear to both parties and explained in the CMRI.CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


APPENDIX 4MODEL CMRI FOR AGENCIESThe following model CMRI is illustrative of the principles expressed in these Guidelines. It is notintended to be used as a template. CMRI should reflect the particular circumstances and needs ofthe parties to them.MEMORANDUM OF UNDERSTANDINGbetween and 41Date of executionParties1. is represented under this Memorandum of Understanding (“MOU”) by which acts in the interests of all members of living within te rohe o (the area of) . Attached as Schedule A is a map defining the area agreed to bythe parties as te rohe o for the purposes of this MOU.This MOU is signed by te Kaiwhakahaere and the Chief Executive on behalf of .2. (represented by the Minister ) is represented under this MOU by the Minister (“the Minister”), actingthrough (“the Ministry” or “the Agency”). The Minister has statutory responsibility under the for the . also has statutory rights and obligations under the to improve .This MOU is signed by the Minister and the Chief Executive of .Purpose of this MOU3. This agreement sets out the framework for an ongoing relationship between and .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 outcomes for the people of ;(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 Effect5. This MOU is not legally binding and does not create a legal relationship.APPENDIX 4


42Goals of the Relationship6. 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 owntikanga (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 outcomes by .Principles of the Relationship7. 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 inthe sector that benefits the people of ;(2) acknowledgement of the Crown’s interest in the development and promulgation of policy and legislation on behalf of thepublic 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 eachparty 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 generositytowards each other. Recognising and understanding the capabilities and constraints each party brings to the relationship.Treaty of Waitangi8. The parties acknowledge that the Treaty of Waitangi is a founding document of Aotearoa/New Zealand and as such laysan important foundation for the relationship between the Crown and Mäori. The parties wish to record their agreedunderstanding of their respective rights and obligations in the context of this MOU:(1) that exercises responsibilities for its peoplein relation to ensuring improvement in outcomes;(2) that the Crown exercises käwanatanga (governance), meaning thatit is required to make decisions that take account of the interests of all New Zealanders in achieving outcomes;(3) that decisions made by the Minister and on behalf of the Crown will require a balance to be struck betweenthese considerations; and(4) that the parties will act towards one another at all times reasonably and in good faith.Processes for Working Together9. 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 and and bi-annual meetings between officials acting on behalf of the parties.CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


Resourcing11. Costs associated with meeting for the purposes of this MOU, including travel, will be shared by the parties.Statutory and Contractual Obligations12. The parties acknowledge that is a and that this MOU will notrequire the Ministry to act in any way contrary to its obligations pursuant to Ministerial or Cabinet direction, or under itsstatutory 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 is able to complywith the same.43Non-exclusive Relationship14. acknowledges the agreements under this MOU do not create an exclusive relationship and theMinister and may develop other appropriate relationships.Representations15. The parties agree that they will not make any statement on the other’s behalf to any third party without the express authorisationof the other party.Confidentiality16. The parties agree that unless otherwise required by law or by mutual agreement, that they will keep confidential allinformation 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 bereleased under the Official Information Act 1982.Review and Variation of MOU18. This MOU records a commitment to a long-term ongoing relationship. The parties acknowledge that over time the natureand focus of the relationship will evolve to reflect changing circumstances. Therefore, the parties will meet solely for thepurpose 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 Memorandum20. This memorandum may be terminated by one party giving 60 days notice to the other, or by mutual agreement at any time.Dispute Resolution21. The parties will act at all times in good faith and with the goal of preserving their relationship. However, in the event of adispute 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


Term of MOU22. 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 terminationto the other.ExecutionDate:Date:44Minister Te Kaiwhakahaere oWitnessWitnessChief Executive;Chief Executive;WitnessWitnessCMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


APPENDIX 5MODEL CMRI FOR CROWN ENTITIESThe following model CMRI is illustrative of the principles expressed in these Guidelines. It is notintended to be used as a template. CMRI should reflect the particular circumstances and needs ofthe parties to them.MEMORANDUM OF UNDERSTANDINGbetween and Parties1. is a charitable trust incorporated under the Incorporated Societies Act 1908. provides services for Mäori in the and is a representative of for the purpose of improving their outcomes.452. is established and constituted under the . The statutory role of is toimprove outcomes in the sector. provides policies, programmes and fundingin furtherance of this objective.Purpose3. The purpose of this memorandum is to assist to meet the needs of its Mäori stakeholders in the region by providing opportunities for to influence policies and programmes developed by ,as they impact on Mäori within the .Acknowledgements of Parties4. The parties acknowledge:(1) that te Tiriti o Waitangi/the Treaty of Waitangi is a founding document of Aotearoa/New Zealand and lays an importantfoundation for the relationships between the Crown and Mäori;(2) that the role of as defined by statute benefits from the input of its relevant stakeholders, in this caseMäori in the ;(3) that the relationship created by this memorandum is not an exclusive one and that both parties reserve the right to createor 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 statutory powers and obligations under the 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 provisionof relevant services but that this memorandum is not developed in this expectation. Any such contracts that may bedeveloped 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 complywith the terms and conditions of this memorandum.Agreement of Parties5. The parties agree that they will:(1) work together to improve outcomes in the ;APPENDIX 5


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. further agrees that it will:(1) assist to identify problems with its policies and programmes related to Mäori in the ;(2) provide with advice on developing solutions to any problems; and(3) provide with advice on matters of protocol and tikanga (customs, obligations and conditions).7. further agrees that it will:(1) take account of any information and advice provided by ;(2) provide with opportunities to contribute to decision-making processes, wherethe decisions are relevant to the subject matter of this memorandum; and(3) keep informed about relevant policies and programmes, including the outcome of anydecision-making process.Disclosure of Information8. Any information exchanged under this memorandum remains the property of the originating party and will be keptconfidential to the parties. Such information will only be disclosed with the prior approval of the relevant party and/oraccording to law.Execution of Memorandum9. This memorandum comes into effect on 2009.Review of Memorandum10. This memorandum will be reviewed one year from the date of execution.Termination of Memorandum11. This memorandum may be terminated by one party giving 60 days notice to the other, or by mutual agreement at any time.ExecutionSigned this day of 2009 Signed this day of 2009bybyChief Executive of Chief Executive of Before witnesses:Before witnesses:Name of Witness 1 Name of Witness 1Name of Witness 2 Name of Witness 2CMRI: GUIDELINES AND ADVICE FOR GOVERNMENT AND STATE SECTOR AGENCIES


APPENDIX 6TERMS OF REFERENCE FORTHE CMRI DATABASE1 Underlying AuthorityOn 2 August 2004 after consideration of the recommendations of POL onthe Crown-Mäori Relationship Instruments policy framework, Cabinet:1.1 agreed to the creation of a central repository and database withinTe Puni Kökiri of all CMRI to:• advise Ministers and Agencies on any issue in relation to particular CMRI, andspecifically 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 CMRIdatabase as follows:• every new CMRI• every existing CMRI not already provided to the ad hoc Officials’ group, as previouslydirected 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 inCMRI and any parts of the CMRI policy framework needing review with the first reportdue by 31 October 2005.1.4 agreed to the following process for approving CMRI: the Ministry of Justice and TePuni Kökiri should check proposed CMRI before execution to ensure that the proposedinstruments comply with the policy framework and with other applicable policy andlegislation. Non-complying CMRI would be submitted to POL for approval(CAB Min (04) 25/8).472 Use of Database2.1 Based on the Cabinet directives, the database will be used to:2.1.1 provide Ministers with advice on any issue that arises in relation to individual CMRI,or on trends in CMRI2.1.2 advise agencies on issues in relation to CMRI they are developing, especially inrelation to: issues of consistency relating to mandate, rohe, representative capacity;use of Treaty of Waitangi statements; and other important acknowledgements2.1.3 enable Government oversight of trends in CMRI2.1.4 enable yearly reporting on CMRI to POL2.1.5 enable officials from the Ministry of Justice and Te Puni Kökiri to perform theirvetting function for draft CMRI.2.2 Primarily for the purposes described at 2.1.2 and 2.1.5, the database will be searchable toinform 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 theCrown on its relationship with Mäori.APPENDIX 6


483 Responsibilities, Access and Release of Information3.1 The database will be administered by Te Puni Kökiri. It will be set up both electronicallyand in hard-copy form. Access to the database will generally be restricted to officialsfrom Te Puni Kökiri who are engaged in work for the purposes described at clauses2.1.1-2.1.5 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 amongand between CMRI. The information contained in the database will be accessed by anOfficials’ group member where they are engaged in work for the purposes describedat clauses 2.1.1-2.1.5 above. Ministry of Justice officials will gain this access throughresponsible 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 provisionsof the Official Information Act 1982 and the Privacy Act 1993. Te Puni Kökiri will notifythe parties to the CMRI where a request for release under the Official Information Act1982 is received and of the outcome of the request.4 Deliverables4.1 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 ofreceipt with a statement of the expected timeframe a response will require. That timeframewill be determined by the Officials’ group, but will be reasonable taking into accountavailable resources.4.2 Te Puni Kökiri and the Ministry of Justice will report yearly to POL on trends in andissues for CMRI. The database will be used to aid this purpose.5 Commencement and Review of Terms of Reference5.1 Operation of these Terms of Reference will commence on promulgation of the Guidelinesfor 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


GUIDELINES AND ADVICE FOR GOVERNMENTAND STATE SECTOR AGENCIES


Te Puni Kökiri, Te Puni Kökiri House143 Lambton Quay, PO Box 3943, Wellington, New ZealandPHN Waea + 64 4 819 6000 FAX Waea Whakaahua + 64 4 819 6299WEB Paetukutuku www.tpk.govt.nz

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