Ministry of Justice, New Zealand

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.

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 Māori Collective and its social and cultural context. Examples of where understanding will be most important are:

• importance of the CMRI to the Māori Collective

• how the Māori Collective views the Agency's relationship to the Government (for example: the independence of a Crown entity)

• the Māori 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.

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 Māori 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.

Lines of communication and contact within the Agency should be made clear to the Māori 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 Māori 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 Māori 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.

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 Whakatūpato 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 1976. Te Kaunihera has the objective of encouraging responsible use of alcohol and minimising its misuse.

Where the Māori 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.

Māori Collectives

It is useful if the Māori Collective is a legally constituted body as this provides certainty in dealings with the organisation.

For example:
<The Māori 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 Māori Collective>.

Where the relationship is with a discrete part of a larger group, the party specified in the CMRI should reflect this. If the Māori Collective is subject to other agreements that might affect its relationship with the Agency, these should be reflected.

For example:
<The Māori Collective> is a business unit of <the iwi council> ("Te Rūnanga") which is the tribal representative body of <the iwi> Whānui, established under <section x of the relevant Act>. Te Rūnanga represents the collective of Papatipu Rūnanga (council of owners of land with Māori title) with which it must consult on all appropriate matters.

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.

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 Māori

The use of te reo Māori (the Māori language) in CMRI is entirely appropriate, but mutual understanding of the content is essential. Where text is included in te reo Māori, 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.

Kōtahitanga - 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 Māori and English, it is useful to state how the two documents will work together; for instance, which document has precedence if there is conflict.

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.

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 Māori 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.

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.

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.

For example:
The <Māori 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 <Māori 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 <Māori 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

Agencies are to ensure that acknowledgements of the status, representative role, mandate or rohe of Māori Collectives are accurate, by checking with relevant authorities such as the Office of Treaty Settlements and Te Puni Kōkiri.

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 Kōkiri 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 Kōkiri 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 Kōkiri (for contact details refer to Phase 3: Formalisation and Execution of a CMRI).

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.

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 MĀORI COLLECTIVE

Undertakings from Māori 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 Māori Collectives sometimes overlap. This could give rise to claims (for example, of exclusive mandate) by one Māori 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 Māori 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.

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.

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 1982. Māori 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.

For example:
The <Agency> is bound by the provisions of the Official Information Act 1982. 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 <Māori Collective> has been notified of the proposed release.

Māori Collectives may operate under similar constraints. For instance, if the Māori Collective is a subsidiary, or business unit, of a larger entity it may have policy or reporting requirements relating to that entity.

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 kāwanatanga and tino rangatiratanga

• statements describing the circumstances surrounding the signing of the Treaty.

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.

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.

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 Māori.

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 Māori 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 Kōkiri 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 Māori 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.

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.

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 Māori. 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-Māori Relationship Instruments Officials' Group
c/o Te Puni Kōkiri, PO Box 3943, Wellington

AND

By email to: cmriog@tpk.govt.nz