Last week Māori Development Minister Willie Jackson admitted that the ship had sailed on explaining co-governance to the public, which is why he conceded that it needs to be reframed in a way it can be understood.
Jackson believes that he’s worked out the two areas the Government has gone wrong with explaining co-governance.
Whilst Jackson believes that most New Zealanders understand co-governance from a Treaty of Waitangi and rights perspective, such as the settlements negotiated with iwi, Jackson says there’s a second type – social equity co-governance – that has been misunderstood.
Jackson clearly either does not fully grasp the mood of the public or he is deliberately underplaying it for his audience. Social equity co-governance has been utterly rejected by the electorate and cannot be resuscitated by a superficial re-branding.
Insofar as co-governance of natural resources is concerned, most New Zealanders understand that even that is not a requirement of the Treaty but that some sort of governance or management arrangements may be agreed as part of a Treaty settlement on a case by case basis.
And despite the hype, the jury is still out on the success of co-governance or co-management of natural resources. One such example frequently cited is Te Urewera, not least because it was implemented by the John Key government.
Last year I wrote an article titled Te Urewera is Not co-governance in which I argued that, given that Tūhoe now has the majority of the seats on the Te Urewera Board, it was, in reality, Tūhoe governance.
Board minutes from two meetings of Te Urewera Board (TUB) during 2022 recently obtained via an Official Information Act request confirms that that is also the view of the Board. In fact, the minutes of their meeting last February records the following:
Tūhoe are unfamiliar with the term co-governance, not their word. The only arrangement Tūhoe has with the Crown was signed in 2011 preceding the 2014 settlement the crown and Tūhoe compact was clear on why and how they were to work together - with decency and respect for their mutual honour. Mana Motuhake is maximum autonomy, taking leadership responsibility and passionate action.
The minutes go on to describe a Board with a troubled and strained relationship with the Department of Conservation, determined not to ‘abdicate’ their control of the land and wary of the court of public opinion which may, in their view, sway the minds of politicians.
The minutes summarise the fractured relationship between the Board and the Crown in the following terms:
The way ahead is tricky because of the ever presence of too many unresolved serious troubles that have brought us to this point of despair. Needing to know if we can, do we want to, how do we fix that back stuff so we have reason hope and trust to go ahead? These can be snakes and ladders. We need more than kind words and good sentiments. We need action on every commitment: the decommissioning of DOC structures, the exit of DOC infrastructure is that action we need actioned.
Thus, whilst health & safety is given as the main reason for the removal of huts, it seems clear that Tūhoe view their removal as representing a far more fundamental change in the nature of the Tūhoe-Crown relationship. Indeed Tūhoe go on to suggest that the removal of the huts is a pre-condition to restarting their relationship with the Department of Conservation:
Tūhoe wish to free DOC from its H&S obligations by working together to remove their entire asset structures from Te Urewera. Tūhoe will start by collating and returning all DOC equipment on loan and purchase their own. Then as the shared annual operation plan, assist with the removal of huts and eventually bridges. There are at least 10 huts not fit for purpose - not repairable. DOC to make decision about the others, work out a sequence and cost. Tūhoe have no want or need to retain the existing structures new constructions to be financed by Tūhoe. The removal of all assets is very symbolic to the legislation.
DOC agreement to this focus for 2022-23 would restart open conversation with Tūhoe.
Far from governing with mutual respect for each other the Crown is viewed with deep suspicion. The minutes note:
DOC is recidivist, presupposing control and assuming better knowledge, we must take precautions.
Even beyond the removal of huts, there appears to have been little operational work conducted by Tūhoe or DOC over the last seven years. The Board minutes from May last year records one member reviewing progress made on the 2015 Work Programme and noting the following:
… only seven work tasks have been completed over recent times and as an outgoing board member he is disappointed while accepting most things post settlement are exploratory tentative ventures, work in progress.
To which the response from the Board was:
While a number of the work themes listed are not critical, immediate or matters of urgency, more developmental, we agree nonetheless there are duties to be achieved. This operational level failure reflects ‘it is what it is’ failure of DOC - TUT (Te Urewera Trust) relationship we are determined to overcome.
More broadly the minutes show a Board concerned about the new Crown representatives that the Minister is required to appoint to the Board. Those appointments are well overdue and now sit with Minister Willow-Jean Prime. The third Minister in eight months to give consideration to this matter.
The Board anticipates that the Crown candidates are likely to be “conservationists, routine systems experts [and] political party followers not competent in treaty partnerships”. However, the minutes note that there is a desire by the Board “to influence the politics of the next crown appointment, agree they do not need to be expert in conservation but be good listeners.”
The Board agrees that it:
cannot leave the TUB appointments to chance so we must present to appointers a relevant for the times standard for membership selection. This may include capability in:
In considering the ramifications of the new Board members, the minutes note that:
- Public relations - communications
- Public policy in government - environment
- Te Urewera connected - active ahikā background
- Iwi hapū centred - Tūhoe Mana Motuhake inspired
In previous discussions with DOC, TUT identified four category of fatal risks to everything.
- Abdication by Tūhoe of their Te Urewera connections and responsibilities
- Return of DOC as the better custodian and master
- The court of public opinion used to subvert
- Failure of leadership and unity from TUT and TUB
Tūhoe will not abdicate. The return of DOC to be improbable. The court of public opinion now in play. Safeguard actions against failure of leadership/unity.
Of note, the public relations element is a significant factor in the Board deliberations regarding the removal of the huts. The minutes note the following:
The future of TUB TUT is operating without dependency on DOC, raising Tūhoe capacity and capability to re-imagine and realise a Te Urewera Tūhoe existence. It would be great to have a crown appointee with a track record in public relations communication and another with public policy in government or environment experience to help manage ‘the court of public opinion’ that public presently lured by sceptics and opponents, that is our fatality risk at this time, our response is clumsy.
Public opinion can sway bureaucrats, who can drive government to rescind on commitments in the belief their rights entitlement are forfeit, and Te Urewera wellbeing is threatened.
Indeed, so concerned is the Board about the impact of publicity that they resolve to review all inward and outward correspondence relating to Te Urewera Trust. The minutes provide the background as follows:
The latest correspondence referred to by DOC has been by way of OIA - a Stuff reporter wanting access to all correspondence between DOC and TUT about H&S issues. It appears the reporter may be exploring the idea that by repeatedly ignoring the expert advice of DOC, Tūhoe lowered the standard of care for the health and safety of the public and by not engaging with DOC in the spirit of collaboration Tūhoe may be viewed as difficult, perhaps not trustworthy.
TUT will not be giving interviews.
So there we have it. What does 2023 hold for Te Urewera Trust and its Board? It could be a challenging year. The hut removal has been halted by an interim injunction pending a final decision. The new Minister needs to select Crown appointees to the Board who will assist in rehabilitating the fractured relationship between the Crown and the Board. And we are in an election year where co-governance is one of the issues at the forefront of voters’ minds.
Post script: The urgent interim injunction preventing the destruction of huts was granted in the Rotorua High Court on 8 November 2022 in response to legal action started by a Tūhoe elder, Clyde Tuna against Te Urewera Trust. At the time, the Court expressed the desire to set a date for a substantive hearing by 18 November. However, as at today’s date, no date has been set by the Court as the parties continue to engage in discussions. Despite the injunction remaining in place, it has been reported that police are investigating reports that a further eight huts had burned down sometime between 19 and 29 November.
Thomas Cranmer, Lawyer with over 25 years experience in some of the world's biggest law firms. Thomas regularly blogs at https://cranmer.substack.com/