Existing legal and institutional concepts do not serve Māori organisations well. What needs to change?

Once again the issue of accountability within Māori organizations is back in the news following some examples of dodgy behavior. Joshua Hitchcock, over at The Spinoff, has bravely jumped into the debate with his thoughts on accountability within Māori organizations.

He suggests there are two underlying issues here – one is the complicated mix of different types of entities that Māori face. His solution is a new type of legal entity for Māori organizations. His second concern is the lack of mechanisms to hold governors of Māori organizations to account. Here the suggestion is an independent Ombudsman.

Having had a hand in establishing and working with a range of Māori organizations I also have some thoughts on these suggestions.

I’m not convinced that complexity is the problem. Some complexity within Māori organization is a necessary thing because Māori organizations often perform a range of complex and competing functions. They provide governance and leadership. They deliver social services. They run a wide range of commercial businesses. So often you need a mix of different entities within a wider iwi group to ensure you ring-fence risk and have different people, with different skills, overseeing different functions. 

Having said that, some of the existing complexity is unnecessary. That unnecessary complexity is often the result of issues around tax and charitable status.  

For example, many Māori groups operate a charitable entity because they provide charitable outcomes. So they seek to take advantage of charitable tax status just as any other charity does. 

But some functions that a Māori organization might want to provide now or in the future do not meet the definition of "charitable purpose". The difficulty then is that if you hold all your assets in a charitable entity you can’t easily provide non-charitable functions, or swap to a non-charitable structure at a later date. 

Part of the problem here is that what a ‘charitable purpose’ can be is founded on what was seen to a public good in 1600s England. That starting point isn’t one that reflects Māori concepts and values or the types of functions Maori entities undertake today. So multiple entities are used to make a square peg fit a round hole.  

A new type of entity for Māori organizations doesn’t address these issues – you will still need multiple entities to manage risk, separate competing functions, and to work with different tax requirements. Instead, the deeper issue is that the wider legal environment isn’t one into which Māori organizations often easily fit. The discussion about appropriate Māori entities needs to be a much more fundamental one rather than simply creating a new type of entity.    

Ultimately though I’m not convinced that the problem in properly managing Māori organizations is complexity because the various failures that crop up in the media are not administrative failures. They are more often just that someone has had their hand in the till.  

So the more important issue is how to provide effective accountability within Māori organizations. 

I don’t think that an independent Ombudsman is the solution here for a number of reasons. 

One of those reasons is that when faced with external scrutiny the initial response for many Māori can lean towards not fully engaging with an outside investigation and possibly even support for those affected.   

That response is often mistaken for closing ranks or lack of accountability.  But it’s not.  Instead it reflects quite different cultural concepts of what justice or accountability might require.  

From a Western perspective it’s about attributing blame to an individual and punishing them in some way. Accountability is holding someone to account. From a Māori perspective the focus is often more about putting things right and fixing an upset balance - restoring the relationships that have been harmed, supporting those affected, and making sure it doesn’t happen again. Accountability here is an accounting – a balancing process. 

This is a process that needs to happen within a community itself, not imposed on it.  So an external adjudicator like an Ombudsman is a poor fit.  

What might be a better approach is access to a mediation or restorative justice type of service. One in which Māori entities, and the members they represent, can access appropriate facilitators who don’t pass any form of judgment but enable those involved to work together to hold decision makers accountable and restore relationships that have been damaged.   

This isn’t to say that some lessor standard of accountability should be expected or accepted.   But the process of holding decision makers accountable, and the outcomes that result, shouldn’t just be transplanted from existing models.  This is where a new solution should be unique and purpose built.