On a beautiful summer’s day yesterday, National’s Christopher Luxon joined other politicians on the annual pilgrimage to Rātana Pā to celebrate the birthday of T. W. Rātana, the founder of the Rātana Church.
Notably, Luxon used his speech to address “the big topic of the day and of the last few years - which has been that word co-governance”. And despite some criticism from Carmel Sepuloni and Marama Davidson for raising the issue yesterday, it was undoubtedly the right time and the right forum to broach the topic.
“We believe in a single coherent system - not one system for Māori and another system for non-Māori - for the delivery of public services. Things like health, education, and justice, and critical infrastructure like three waters.”
“It doesn’t mean that we don’t want Māori involved in decision-making and partnering with Māori, we have a principal objection because New Zealand has one government: it's elected by all of us, it's accountable to all of us, and its public services are available to anyone who needs them.”
This is an entirely sensible point of view, and is one which is consistent with the terms of the Treaty. Whether it goes far enough, however, is an open question.
Co-governance has largely been confined to the management of natural resources and has usually been part of a Treaty settlement process. More recently, however, it has begun to expand into local government and public services.
But even within natural resources, co-governance has had mixed success at best.
The obvious example is Te Urewera which has been in the news recently due to friction between Tūhoe and Te Uru Taumatua (TUT), the Tūhoe governance body for Te Urewera, over the destruction of hunting huts. The disagreement has also revealed that the relationship between TUT and the Crown has entirely broken down, with almost no communication between the parties over the last two years.
The people of Tūhoe feel utterly let down by the current state of affairs. As part of these co-governance arrangements, iwi usually form a Post-Settlement Governance Entity (PSGE) which enters into the governance arrangements with the Crown on behalf of the iwi. In the case of Te Urerewa, the PSGE was TUT.
But as one Tūhoe elder recounted during last year’s protests, what has happened is that a small number of tribal elite that make up the majority of the board of TUT have ignored the wishes of the iwi on a number of issues and have decided to act as they please. Any concerns raised by the iwi to the Crown have been rebuffed as it only wants to deal with the PSGE. As a result, iwi members feel just as disenfranchised as they did before the co-governance arrangements were put in place.
In this sense, co-governance can be seen to only benefit the tribal elite and not iwi members. If that is the case, then the question needs to be asked whether co-governance is the most effective means to manage natural assets and whether the Crown’s Treaty obligations to Māoridom can be better satisfied with different arrangements.
Without doubt, the Treaty does not, by its terms, require co-governance to be utilized in any scenario. Some will disagree with that assessment but if that’s the case, then honest and respectful debate should be encouraged about the meaning of the Treaty.
The concept is actually a relative newcomer to Treaty interpretation. Co-governance was certainly never mentioned in the three years that I spent in the Māori Studies department at Auckland University in the 1990s, nor at Law School during the same time. Sovereignty was the hot topic of the day that excited Ranginui Walker and Jane Kelsey.
By contrast, co-governance has become more prominent since New Zealand became a signatory to the United National Declaration on the Rights of Indigenous Peoples and Treaty academics have looked to other countries for examples of constitutional arrangements with their First Peoples.
One country that has been cited at least twice in Cabinet Papers by Ministers Mahuta and Jackson as an example of a model constitutional arrangement is Bolivia. It is of interest to New Zealand Treaty academics because Bolivia has instituted what is described as a ‘pluralistic democracy’ which allows for self-determination of their First Peoples within their tribal lands, and which includes legal pluralism.
Bolivia, of course, is a very different country to New Zealand but there is a feeling that we are importing governance frameworks from overseas and then employing very strained and tenuous interpretations of the Treaty in order to find justification for them. We obviously should resist any such efforts.
Rather than replicating another model, we should be clear about what the Treaty requires, and discuss in an open and transparent manner how best we think New Zealand should be governed.
- My previous articles on the current breakdown in the co-governance arrangements relating to Te Urewera are the following:
- Te Urewera is Not co-governance is here (31 October 2022).
- Tūhoe vs Tūhoe - the Rumble in the Jungle is here (10 November 2022).
- ‘We made a National Park disappear’ is here (14 November 2022).