Submission to the Board of Trustees of the New Zealand AIDS Foundation Regarding their proposed Race-Based Quota for Board Membership 1. I have been active in the field of human rights since 1992. I am a member of various human rights organisations, including the national Human Rights Network. I have first class Honours in Women Studies. A substantial component of my honours papers dealt with human rights issues affecting the gay, lesbian, bisexual, and transgender (lgbt) communities. I am completing my PhD thesis. Again, this thesis comprises of issues affecting the human rights of lgbt communities. 2. I am currently a member of the Foundation and served several years as a volunteer for the Foundation between 1993 and 1997, during the period of the Human Rights Bill debate, and with what is now termed the Gay Men's Health Team. 3. I seek to present an oral submission at the meeting in Wellington on 12 July 2005. 4. On 18 June I wrote to the Board asking specific questions in relation to the proposed race-based quota and claims made by certain Board members. Among these was a request for the legal advice that the Board must have received since it was claiming the proposal is a “legal requirement”, and if not advice was received, why it hadn't been received. 5. In that letter, I also asked the pertinent questions of who had provided that legal advice; what precedents in regard to a race-based policy the Board knew of; whether a race-based policy was consistent with human rights laws; whether the Treaty of Waitangi (the Treaty), being an agreement between Maori and the Crown, was binding on any other body other than the Crown; if the Board would provide me with copies of any court documents that indicated that a race-based policy is required under any version of the Treaty; if any previous Board had considered a race-based quota, and if so, why it had been rejected; what the Board would do if insufficient Maori were nominated for election to fill the race-based quota; why the Board believes a race-based quota is constitutionally required given that more than 50% of the current Board is Maori; whether or not is it insulting to Maori to have a race-based quota; and, given the increase in the number of refugees who are testing positive, will the Board then require a change in the constitution to allow them a quota. 6. However, the Board, in its “wisdom” chose not to answer those questions, and instead appears to have sought to silence debate by stating: “We are of the view that the questions you have asked do not need to be addressed in order for you to effectively participate in the consultation process”. 7. The reluctance of the Board to answer my questions, contrary to claims made by the Board, also affects my ability to “effectively participate in the consultation process”. Without answers, I am in the dark as to the legal advice received by the Board, etc., and am unable to address those particular issues in my submission. I can only make guesses, or assumptions, where knowledge would otherwise have been. As a result, this submission is far longer than would otherwise have been the case, and asks questions that would have been answered had the Board taken my requests of 18 June seriously rather than just dismissing them in what appears to me to be an extremely offhand and dismissive manner. 8. The reluctance of the Board to answer my questions also indicates that the board are not seeking true consultation as required by clause 90 of the constitution, but are holding information back, and thus denying information from the members and the public. This is contrary to open governance, and is thus, I believe, in breach of subclauses 16(a), (b) and (c) of the constitution. 9. If the Board is not seeking to stifle debate, it should honestly answer those questions. Without the legal advice that should have been provided to the Board, how do I know that it is indeed a “legal requirement”? If the Board did not seek legal advice, then why did they not do so? If they did not do so, why are they then of the opinion that a race-based quota is a “legal requirement”? 10. Is the Board unaware of any precedents that have been set by other NGOs in regard to race-based quotas? Or are they aware of such precedents, just not telling anyone? 11. Is the Board unaware of any court rulings that indicate a race-based quota is a legal requirement? Or are they aware of such rulings, just not telling anyone? 12. Is the Board unaware of any previous race-based quota the Board has had, and if so, why? 13. Is the Board unaware of why such policy had to be changed? If not, then why hide it? 14. All of the non-answers to my questions indicate that (i) the Board is seeking to stifle debate; (ii) members of the Board have made comments that are not accurate and the Board is attempting to find justification for those comments; or (iii) that the Board is ignorant of the facts. Any one of the above calls the competence of the Board into question, and therefore calls into question ability of the current Board to meet the skills required under clause 20 of the current constitution. It therefore also calls into question the ability of the Board to make any appointment to the Board under clause 19 of the current constitution. More importantly, it also calls into question the ability of the entire Board to remain within clause 16 of the constitution that requires Board members to act with reasonable care, diligence and skill, with honesty and integrity. 15. The Board has claimed that the proposed changes are required under the Maori version of the Treaty and the constitution. All commentators that I am aware of state that the Treaty, in any version, is between Maori and the Crown. It is not between Maori and non-crown entities, such as non-governmental organisations, private companies or individuals, or even between Maori and Pakeha. Clause 3 of the constitution affirms that the Foundation is “a community-based, non-governmental organisation”. There is no court decision that states the Treaty is between Maori and such groups, unless the Board knows of at least one, but is withholding that information. I believe the Board is therefore trying to redefine the Treaty. I believe this to be unethical and ideological. 16. There is no requirement under the preamble, Article 1, Article 2 or the oral Article 4 of the Maori version of the Treaty for a race based quota. As the Foundation is not singularly a Maori health initiative, nor singularly an Iwi based health initiative, nor singularly a Marae based health initiative, there appears to be no legal requirement for a race-based quota in terms of tino rangatiratanga contained in clause 3 of the Constitution- the “unqualified exercise of their chieftainship over their lands over their villages and over their treasures” as given in Article 2 (literal translation by Ian Kawharu, 1989). Kawharu (1989: 320) notes that where discussion of the Treaty is in English, it should be the literal translation of the Maori version that is used. 17. The Department of Social Welfare (1994), a Crown entity and thus able to negotiate with Iwi, defined Tino Rangatiratanga as “The Principle of Self Management. ... [a reference to Article 2]. The preservation of a resource base, restoration of Iwi self management and the active protection of taonga, both material and cultural, are necessary elements of the Crown's policy of recognising Rangatiratanga”. Department of Social Welfare (1994). Te Punga O Matahorua. Our Bicultural Strategy for the Nineties. P 8. 18. Ian Kawharu (1989: 319) explains that Rangatiratanga, the concept of ‘chieftainship', “has to be understood in the context of Maori social and political organisations as at 1840. The accepted approximation today is ‘trusteeship'; see NZMC Kaupapa 1983”. While that excerpt from Kawharu explains in part the concept of rangatiratanga, it does not explain the meaning behind “tino rangatiratanga”; although perhaps an understanding of “rangatiratanga” may help in understanding the full term. Kawharu further explains that the term “tino rangatiratanga”, is the “‘unqualified exercise' of chieftainship- [which] would emphasize to a chief the Queen's intention to give them complete control according to their customs. ‘Tino' has the connotation of ‘quintessential'” (1989: 319, emphasis in the original). Kawharu, I.H., (ed)., (1989). Waitangi: Maori and Pakeha Perspectives on the Treaty of Waitangi. 19. Ranginui Walker (1990: 93) explains that in Article 2 the Queen guaranteed to Maori the “absolute chieftainship over their lands, homes and treasured possessions. Tino rangatiratanga was a much closer approximation to sovereignty than kawanatanga. The word rangatiratanga is a missionary neologism derived from rangatira (chief), which, with the addition of the suffix tanga, becomes chieftainship. Now the guarantee of chieftainship is in effect a guarantee of sovereignty, because an inseparable component of chieftainship is mana whenua. Without land a chief's mana and that of his people is negated. The chiefs are likely to have understood the second clause of the Treaty as a confirmation of their own sovereign rights in return for a limited concession of power in kawanatanga.” Walker, R., (1990). Ka Whawhai Tonu Motu. 20. The Treaty thus guarantees to each Chief, to each Iwi, their unquestioned, unqualified, absolute right to run their own affairs over their lands, homes, treasures, etc. I think it would be unlikely that one Iwi would be able to practice the Tino Rangatiratanga of another, although it may perhaps be devolved to the Hapu of each Iwi. It would therefore be impossible for a non-governmental agency that has many different sorts of ties with many different Iwi, but belongs to no particular Iwi, to use the tino rangatiratanga of any particular Iwi, or to share the tino rangatiratanga of any particular Iwi, or to share its own authority with any other Iwi or group. 21. The only Article that indicates “equality” is Article 3 of the Treaty, which states: “For arrangement therefore this for the agreement concerning the Government of the Queen will be protected by the Queen of England the people ordinary all of New Zealand [who] will given them the rights and duties all in equal measure [that apply] under her constitution to the people of England” (literal translation by Ian Kawharu, 1989). As can be seen, this is talking about equal citizenship, and by the use of “tikanga” to emphasise “rights and duties”, Kawharu notes that “There is a real sense of the Queen ‘protecting' (i.e., allowing the preservation of) the Maori people's tikanga (i.e., customs) since Maori could not have had any understanding of whatever British tikanga (i.e., rights and duties of British subjects). This, then, reinforces the guarantees in Article 2” (Kawharu, 1989: 320, emphasis in the original). 22. There is therefore no legal requirement of a race-based quota in the text of the Treaty, unless the Board is in possession of legal advice, which it refuses to make public, that that there is such an obligation. 23. Clauses 3 to 5 of the constitution of the Foundation states that the Foundation “acknowledges the Maori text of the Treaty of Waitangi”, “will respect and affirm te tino rangatiratanga (‘the unqualified exercise of chieftainship'), and the authority of all other bodies which act with the explicit warrant of whanau, hapu, iwi or te ao Maori”, and that the Foundation “will also seek negotiated relationships with Maori organisations in order to further the objectives for which the Trust exists”. 24. There therefore appears to be no “legal requirement” under those clauses of the constitution for a race-based quota, unless the Board is again withholding information. 25. Either the Board is withholding information relevant to the debate, or it is being untruthful in its claims that a race-based quota on the Board is a “legal requirement”. Either way, the Board is therefore in breach of subclause 16(c) of the constitution by not acting with honesty and integrity. 26. The any change to the constitution must enhance the governance of the Foundation, must enhance the functions and additional functions, and the roles and responsibilities of the Board, must enhance the decision making criteria of the Board. What it must not do is to bring the Foundation into disrespect, or damage the good name of the Foundation. 27. These functions and additional functions are given in clauses 9, 10, 19 and 41 of the constitution. These are: Principle Functions of the Board 9.0 The three principle functions of the Trust Board are to: a) set expectations for the organisation's overall performance b) performance monitoring and assurance of legal and contractual compliance or conformance c) quality assurance and management of the Board's own performance, including selecting and directing (through policy) the Executive Director. Additional Functions of the Board 10.0 In addition to section 9 of this Constitution, the Board is responsible for protecting the good name of the New Zealand AIDS Foundation by: a) ensuring accountability of financial resources from public and private funds b) ensuring the implementation of annual planning and budgeting cycle c) ensuring that the programme of work necessary to attain the objectives of the NZAF is planned and implemented as far as available resources allows d) approving an annual budget, monitoring its expenditure and keeping expenditure within budget e) developing guidelines on the sound management of volunteers, including grievance and complaint procedures f) ensuring the consideration of resolutions of the Annual General Meeting and, where appropriate, adopting them as formal NZAF policies g) preparation of an annual report on the work of NZAF, including audited national accounts for NZAF. Roles and Responsibilities of the Board 19.0 The roles and responsibilities of the Board in relation to the appointment of Board members include: a) the appointment of members to the Board b) the identification of skills and experience required on the Board c) deciding whether to reappoint the current member, if they are eligible for reappointment, or whether to seek nominations for a new member d) deciding upon the appropriate nomination process for each vacancy e) the appointment of the Chairperson and Deputy Chairperson of the Board. Decision-Making Criteria for Board Decisions 41.0 The Board must give due consideration to the following criteria when making decisions in its Board duties: a) the Statement of Purpose of the New Zealand AIDS Foundation b) the Treaty of Waitangi, in particular te tino rangatiratanga (“the unqualified exercise of chieftainship”) and kawanatanga (sovereignty) c) the relevance and likely impact of any decision on people living with HIV/AIDS d) compliance with legislation including acts, codes and regulations e) the protection of the good name of the New Zealand AIDS Foundation f) the protection of ongoing public and private funding of the New Zealand AIDS Foundation g) the relationship between the governance and management of the New Zealand AIDS Foundation h) the resources available to the Foundation, including human and financial. 28. In my view, a race-based quota does not enhance any of these functions. In fact, if any, it has a decided negative effect on “protecting the good name of the New Zealand AIDS Foundation” (clause 10, preamble) and on “the protection of the good name of the New Zealand AIDS Foundation” (subclause 41(e)). This is evidenced by the public comments that have been made since the pronouncement of the Board of a race-based quota, and the comments of Gerry Brownlee in the New Zealand Herald, quoted on GayNZ, that “When organisations do things like this they start to dent their credibility”. 29. There is no proof provided by the Board as to how a race-base quota would enhance sub-clause 41(b), given that there is no requirement under the Treaty for race-based quotas, the Foundation is “a community-based, non-governmental organisation” that is not affiliated with only one Iwi, nor affiliated with any one Marae, nor is a provider of health services only to, or predominantly to, Maori. I believe the race-based quota does not enhance te tino rangatiratanga (“the unqualified exercise of chieftainship”) and kawanatanga (sovereignty) in any way. 30. On the contrary, it appears that the proposed race-based quota is an insult to Maori. A race-based quota implies that suitably qualified Maori are unwilling to stand for election or appointment to the Board, and thus must be co-opted in order to make up the numbers. This is obviously not true, yet is the implication made by this very Board. It also implies that there is a lack of skills among Maori that must be compensated for by providing such a race-based quota. Again, evidentially false, but implied by this very Board. It implies that Maori are not as good as other people who may be standing for the Board, and must therefore have such a race-based quota. Yet again flase, yet implied by this very Board. It therefore indicates that the Board are not truly seeking the best people for the Board, as required under clause 20 of the constitution, but prefer to have a race-based quota that is an insult to Maori and to others. 31. For those who believe that it is insulting to Maori to state such things, then I challenge them to think how a person would feel who is appointed to the Board to make up the numbers of a race-based quota. Would they ever be sure that they truly were there because of the skills they have, or just because they were there to make up numbers? I believe that is more insulting. 32. Just as the Board has refused to state what legal advice it is acting upon, bringing about the assumption that it has not received any legal advice, or is not being truthful in regards to that claim, either way, being guilty of breaching the constitution, the Board has not indicated how it came to this decision to enforce a race-based quota under the constitution. The Board claims: “For the last twelve months the Board has been investigating how the constitutional clauses relating to the treaty should manifest in the structure and activities of the Board. This process has involved discussion, facilitated workshops (with external treaty experts) and consideration by the Board as a whole.” Yet the Board has not made the results of these workshops, nor any part of its process of consideration, public. Indeed, there appears to be doubt that the Board has done so- one former unnamed trustee has said in a public forum that the Board has not indeed being doing this. The only conclusion that can be drawn, given the lack of co-operation and lack of honesty from the Board, is that unnamed former trustee is correct and the Board has not in fact done any of these things it has claimed. 33. As a result of this lack of information from the Board in this respect, I request the Minutes of the Boar for the year prior to the announcement of the race-based quota. Only in this way can the Board prove its honesty. Failure to provide those minutes will indicate that the Board is dishonest in its dealings and statements. 34. The Board has refused to state if race-based quotas have been in place in the past, and what the result of that was. This once more indicates a lack of knowledge of the history by the present Board. As former chair Michael Stevens has pointed out elsewhere, such a race-based quota was indeed part of the constitution, and failed. The reasons for this failing are pointed out- that people of insufficient calibre were appointed to those vacant positions. Yet it was believed when they were appointed that they had the “skills and experience required [for] the Board”, that they had sufficient “knowledge and experience with the law”, “knowledge and experience with public health practice and delivery”, “understanding of the application of the principles and articles of the Treaty of Waitangi”, “knowledge and skill in Tikanga Maori”, “skills in and experience of government processes” and “knowledge and experience of the communities most affected by the HIV epidemic in New Zealand.” It is now a matter of public record that these people did not have the skills they were assumed to have, were ineffective as Board members, and as a result, the Board was unable to work effectively, hampering the ability of the Foundation to operate efficiently. 35. I believe the Board may once again find itself in such a quandary and be once again unable to offer the necessary support and guidance to the Executive Director. This may happen at any time in the future due to the actions by this Board in acting as they have. 36. The Board claims that: “The objectives stated within clause five are not identified within the constitution”. Clause 5 reads “NZAF will also seek negotiated relationships with Maori organisations in order to further the objectives for which the Trust exists”. Thus the ordinary meaning of the words contained within clause 5 of the Constitution are indeed quite clear when read with paragraph 3.2 of the Trust Deed and the Statement of Purpose contained in clause 6 of the Constitution. There is no reason to identify them any further. 37. The Statement of Purpose of the Foundation, as contained in clause 6 of the constitution “is to prevent the transmission of HIV and maximise the health of people living with HIV/AIDS.” At paragraph 3.2 the Trust Deed sets out the Objects of the Trust as being “to undertake or to assist by any means whatsoever others to undertake: (a) The screening or testing of persons for AIDS, the diagnosis of AIDS in persons, the tracing of possible lines of communication of AIDS; and (b) the provision of medical and psychological treatment, counselling, emotional and religious support and the relief of poverty of persons affected by AIDS, and (c) The education of all persons as to the nature causes prevention treatment and cure of AIDS but with particular regard to persons or groups of persons affected by or at risk of being affected by AIDS; and (d) Research into the nature, causes prevention, treatment and cure of AIDS”. 38. The Board has not said how a race-based quota for the Board enhances this Statement of Purpose covered by the constitution, nor how it enhances the Objects of the Trust as given in the Trust Deed. Nor has it said how a race-based quota “clarifies” clause 5 of the Constitution. 39. The Foundation began before the principles of the Ottawa Charter were written, but has worked with, and promoted, those principles for many years. Under the heading “Strengthen Community Action”, the Charter states: “Health promotion works through concrete and effective community action in setting priorities, making decisions, planning strategies and implementing them to achieve better health. At the heart of this process is the empowerment of communities, their ownership and control of their own endeavours and destinies.” 40. Even though the Foundation began before the writing of this Charter, the Foundation sought to empower the gay communities by allowing them ownership of the Foundation, and thus control over their destinies and endeavours. 41. How would a race-based quota affect the gay communities ownership of the Foundation? How would a race-based quota help to strengthen community action in terms of the Ottawa Charter? How would a race-based quota affect the (ever decreasing) sense of ownership the gay communities have over the Foundation? 42. How would increasing the number of people on the Board to an even number enhance the ability of the Board to operate and meet its obligations under the constitution and the Trust Deed, given that there is a chance that in a contentious or important matter, the Board may be deadlocked, thus unable to oversee the governance of the Foundation, unable to provide support and guidance to the Executive Director, and unable to fulfil its duties under clauses 9 and 10 of the constitution? 43. As a result of the above, I believe the race-based quota, and the reconstitution of an evenly numbered Board, will have a negative effect on the effectiveness and efficiency of the Board and of the Foundation, and will bring the name of the Foundation into disrepute, contrary to the terms of clause 10 and subclause 41(e) of the constitution. 44. The Board should therefore abandon its proposals to make a race-based quota a requirement of the constitution. 45. I therefore propose that the following be considered by the Board in place of the race-based quota, and put to the SGM on 19 August 2005: 01. That the current Clause 13 of the Constitution be renumbered 13(a) and that the following subclauses be added: (b) Board members shall be elected or appointed to the Board on merit without consideration as to race, colour, or ethnicity; (c) That to prevent a deadlock, number of Board members shall at all times be an odd number. 02. That Clause 3 of the Constitution be renumbered Clause 3(a), and: (a) the following words be added to that Clause, between the words "Treaty of Waitangi," and "signed on": "(The Treaty), being a Treaty between Maori and the Crown," (b) that the words "Tauiwi (non-Maori)" be omitted from the Clause and replaced with "the Crown"; (c) a new subclause be added to Clause 3: (b) The Board may not re-interpret the Treaty beyond it proper context of being between Maori and the Crown, and may not interpret is being between Maori and other groups. 03. That Clauses 89 to 90 of the Constitution be amended to read: 89. The Constitution may only be altered, amended, or rescinded by a resolution subsequently passed by a resolution of Board members, or remit from a member of the NZAF, supported by 75% of the members of the NZAF. 90. The Board must defer consideration of a proposed constitutional amendment by a general meeting to allow extensive consideration and consultation. The period of consultation may not exceed twelve months. The Board must consult with the membership where amendments to the Constitution are proposed. 91. No alteration, addition, or amendment may be made to the Constitution that would affect or alter the charitable trust status of NZAF, that would alter the Objects of the Trust set out in paragraph 3.2 of the Trust Deed, or that would make the use of Trust property or assets inconsistent with the charitable trust status of NZAF. Calum Bennachie PO Box 6109 Marion Square Wellington Calum Bennachie - 17th November 2005