Are Māori wards lawful? This article examines how local councils unlawfully carry Crown Treaty duties—reshaping democracy under legal error.

Note to the reader – this article should be considered in light of other writings of mine, which explore in more depth the topic of Crown offloading its Treaty obligations onto non-Crown entities and, ultimately, onto all of us everyday Kiwi citizens.

In a state governed by the rule of law, legality must serve as the first test of every act of government. When law is bent to suit a moral project or political fashion, we slip from justice into expedience. In New Zealand today, the introduction and maintenance of Māori wards by local councils represents precisely such a slippage: a legally untenable outsourcing of the Crown's fiduciary obligations under Te Tiriti o Waitangi onto local government bodies that are not the Crown. The result is that Māori wards are ultra vires—beyond legal authority—and must be rescinded to preserve constitutional coherence.

The Treaty of Waitangi, signed in 1840, is a bilateral agreement—a compact—between the British Crown and the various Māori iwi and hapū who signed it. It is not a social contract with the general public. As such, it binds only the Crown. The obligations it establishes are fiduciary in nature: the Crown undertook to protect Māori interests. Like any trustee, the Crown cannot delegate its fiduciary duties to a third party unless that party becomes subject to equivalent legal obligations. Local councils are not agents of the Crown in this fiduciary sense, nor are they structurally capable of discharging such obligations.

The New Zealand Constitution, even in its dispersed and unwritten form, makes a clear distinction between the Crown and other public bodies. While ministers, departments, and certain statutory officers exercise Crown power, local authorities exist independently under statute, primarily governed by the Local Government Act 2002 and the Local Electoral Act 2001. They are not an emanation of the Crown in the same way as central government agencies. This distinction is not semantic; it is legal and operational. Councils do not negotiate treaties, do not hold the Treaty settlement purse, and are not sovereign. To expect them to fulfil Treaty promises is to turn fiduciary logic on its head.

The Local Electoral Act 2001 is the legislative framework under which local authorities conduct elections. It allows councils to determine certain electoral arrangements, such as whether elections will be held via first-past-the-post or the single transferable vote system. It also allows for the establishment of Māori wards or constituencies. However, the 2021 amendment to this Act, which removed the ability of citizens to challenge the establishment of Māori wards via referendum, went far beyond mere electoral engineering. It quietly reframed local government as a site of Treaty implementation.

The Act does not explicitly confer Crown status on local authorities. Nor does it supply them with the fiduciary instruments (including money) necessary to uphold the Crown's Treaty obligations. In this respect, the provision for Māori wards is legally incoherent. A power exercised in order to give effect to an obligation that one does not lawfully bear is, by nature, ultra vires. As Wade and Forsyth state, "A public authority must refuse to exercise a statutory power if it considers that to do so would be unlawful or unconstitutional." The legal maxim delegatus non potest delegare—a delegate may not delegate—applies here in constitutional spirit if not in direct form.

The reasoning may be formal, but it is not sterile. The creeping expansion of Treaty duties beyond the Crown is not just administratively problematic; it is unconstitutional. As Philip Joseph writes, "Administrative discretion must be exercised lawfully, reasonably, and in good faith. An authority that persists in exercising an ultra vires function fails in its public duty and risks nullity of its actions." The problem here is not whether Māori deserve representation—a moral or political question—but whether the method adopted has legal authority. It does not.

Local councils are statutory bodies. Their only powers are those expressly granted by legislation. If those powers are exercised in pursuit of an objective they are not authorised to pursue—in this case, the discharge of Treaty duties that belong to the Crown—the resulting act is invalid. As Richard Epstein notes in Simple Rules for a Complex World, when public institutions use legal tools for purposes outside their scope, "they do more to destroy confidence in public administration than to enhance it."

The case for Māori wards often rests on assertions of inclusion, historic redress, or cultural recognition. But these aspirations, however noble, cannot provide a lawful basis for action if the foundational question of jurisdiction is ignored. To put it bluntly: no amount of good intention can cure an act of ultra vires. As Lord Reid declared in Anisminic Ltd v Foreign Compensation Commission, a decision that exceeds jurisdiction is a nullity from the outset.

Therefore, councils who have adopted Māori wards under the illusion that they are fulfilling a Treaty duty are acting outside the bounds of their lawful authority. And if their discretion was exercised for an unlawful purpose, then the motion to create those wards was, and remains, voidable. The Local Government Commission or courts may have the power to retrospectively scrutinise the lawfulness of these decisions, but the first and most immediate duty lies with councils themselves. They must act within the law. They must also refrain from acting where they suspect the law is being abused or misapplied. As Mark Elliott puts it, "A discretion that purports to be exercised under an ultra vires source cannot be cured by good intentions. Illegality infects the discretion from inception."

What is required now is not outrage but legal clarity and civic honesty. Existing Māori wards, having been established on an erroneous legal foundation, should be disestablished through proper resolution. Councils must resist further adoption of these wards. To do otherwise is to compound a legal error and risk eroding public trust in local democratic processes. More importantly, councils must return the Treaty burden to its rightful place: the Crown.

That does not mean Māori voices should be excluded from local governance. On the contrary, councils can and should perhaps establish non-voting, non-binding Māori advisory boards (or something of that kind), if necessary funded by the Crown. This solution honours the noble intent—by maintaining dialogue and inclusion—while respecting the legal architecture that underpins our system of government. Such boards would carry mana, reflect tikanga, and offer vital cultural insight for Councils’ consideration, but without distorting the constitutional boundary between local authority and sovereign obligation.

This approach also aligns with Elinor Ostrom's insights into polycentric governance. Councils should consult, engage, and collaborate with Māori communities, but not as executors of Crown’s Treaty obligations they do not own. Civic legitimacy requires that each institution perform the role it is legally empowered to carry out, and no more. The strength of democratic governance lies not in symbolic overreach but in institutional integrity.

If left unchallenged, the gradual offloading of Treaty duties onto councils (and ultimately onto everyday Kiwi citizens) will erode constitutional clarity and ultimately backfire. Citizens will resent paying the political and fiscal price for promises they never made. Māori will find themselves negotiating with underfunded, overstretched local bodies incapable of delivering real outcomes and also lacking the full legal authority of the Crown. And the Crown will retreat from its historic obligations behind a smokescreen of delegated symbolism.

Let us not allow that to happen. Councils must reclaim their legal footing and disestablish Māori wards inappropriately established via ultra-vires provisions of the Local Electoral Act 2001. The Crown must re-shoulder its Treaty burdens. And together, non-Māori citizens and Māori alike must demand that the law remain our common language, not a pliable script rewritten for convenience. The future of civic unity depends not on rhetorical inclusion but on institutional integrity.

This is not a call for division. It is a call for reconciliation through law. True honour lies in truth, and truth begins with clarity about who owes what to whom. The Treaty was not signed with your local council. Nor should your rates and local governance structures be saddled with Crown’s Treaty obligations.

References

• A.V. Dicey, Introduction to the Study of the Law of the Constitution
• Mark Elliott, Public Law and the Constitution (commentary)
• Richard Epstein, Simple Rules for a Complex World
• Philip Joseph, Constitutional and Administrative Law in New Zealand
• H.W.R. Wade & C.F. Forsyth, Administrative Law
• Elinor Ostrom, Governing the Commons
• Lord Reid in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
• Local Electoral Act 2001 (New Zealand)
• Local Government Act 2002 (New Zealand)

This article was originally published on the 14 June 2025 here.