Kerry Burke: The need to cut through the confusion over co-governance

There seems to be a great deal of confusion about what co-governance means, with our political leaders also seemingly uncertain.

Māori Party president John Tamihere seems to be clear, telling RNZ recently, that it was part of “the re-indigenisation” of our country, something that might play well with the 1% of voters that recent polls show support his party, but would be unacceptable to most of the other 99%.

Its literal meaning, however, is crystal clear, a sharing of government between two entities.

Its recent iterations (and the controversies around them) have arisen from the attempts of the previous and current governments’ attempts to find ways of implementing the Key government’s signature to the (voluntary) United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

This declaration provides for indigenous peoples to “self-determination” and “autonomy or self-government”. Helen Clark’s government declined to adopt this declaration primarily because it would give Māori more rights that the rest of us.

As a Canterbury University history student in the 1960s, my contemporaries and I were taught the importance of the primary sources of events, the original documents, not to base our knowledge just on the secondary and tertiary writings, opinions about opinions about those events. So it is with our Treaty.

In its preamble, there is a need for the Treaty to “avert the evil consequences” of lawlessness.

The Treaty, apart from anything else, gave the British military a legal basis for dealing with that lawlessness which was occurring in wild times, especially in and around Kororāreka. The lack of a legal basis for the expenditure incurred had caused concern in the British Treasury.

In terms of governance, in Article the First, the chiefs cede “absolutely and without reservation” to the Crown all their “rights and powers of Sovereignty” over their respective territories.

In Professor Sir Hugh Kawharu’s translation, which the Waitangi Tribunal relies upon, the chiefs “give absolutely to the Queen of England for ever the complete government over their land”.

The Ardern government could have taken Helen Clark’s view but, no doubt under the influence of its Māori caucus, set about considering the choices available under UNDRIP.

Te Puni Kokiri drew up some proposals in a document called He Puapua. These included a Māori upper house to Parliament.

While this was quickly dismissed by Ardern, a variety of ad hoc co-governance arrangements was developed. These included the Three Waters plan and the two Ngai Tahu-appointed Environment Canterbury councillors (but not for the other regions in the Iwi’s rohe).

Recent events in the north have clearly shown the need for major investment in our water infrastructure, but it’s the co-governance component that is unpopular.

The Government could have gone to the communities and said, “Auckland (or Havelock North or Dunedin) we’ve got a problem. We need to invest $100 billion or more over the next 20 years upgrading your systems. What’s the best way to go about it?”

This was not the course chosen, so some backtracking is needed now.

The new Prime Minister, Chris Hipkins, needs to press the pause button, to taiho and establish a high level, formal consultation mechanism to enable the wider community to submit to, before recommendations are made to the government.

If we are going to change our constitutional arrangements in a fundamental way, this needs to be done in a coherent, planned manner, with wide community support, not by Te Puni Kokiri mission creep, or the stumbling we have witnessed so far, where nobody professes to know what’s going on.

We have the longest continuous universally franchised parliament in the world, from 1893 and counting. The Bill of Rights Act reinforces that position, with section 12 stating that elections to the House of Representatives shall be by universal suffrage and by secret ballot. So it should be with all subordinate public decision-making authorities.

Labour’s constitution also states that the natural resources of New Zealand belong to all the people yet, with regard to perhaps our greatest natural resource, the current Three Waters proposal offers equal governance authority to 84% of the population on the one hand and 16% on the other.

There is nothing in the Treaty, our primary source document, that provides for that inequality. It is just plain wrong (and unpopular).

Mana whenua definitely need to be involved in resource management. Co-management under a democratically elected authority is definitely better than co-governance.

Squaring the circle won’t be easy, but a proper, formal process is guaranteed to produce a better result than the slow motion drift to the destruction of democratic accountability.

 Sir Kerry Burke is a former Speaker of Parliament (1987-1990) and a former chairman of Environment Canterbury. This article was first published HERE.