Co-Governance in Aotearoa New Zealand: Controversy and Cooperation
By Michaela Ryan-Lentini
Co-governance has placed itself squarely at the forefront of political discourse in the leadup to the 2023 election, yet many New Zealanders may be unsure as to what this entails and how it relates to our history. Co-governance is growing in prevalence as a governing method in New Zealand. It has long-standing historical roots and the ability to bring us closer to expressing the intention of Te Tiriti o Waitangi; however, it is a controversial model for many reasons. Co-governance, in essence, aims to actively draw iwi and regulatory bodies together to cooperatively manage a particular resource that the groups have an interest in.[1] This endeavours to reconcile the wide gap between what iwi expected when signing the Treaty of Waitangi and what eventuated. Whether co-governance achieves this goal is debatable; yet, within our current political and constitutional climate, co-governance provides means to start expressing something closer to the form of governance promised in the Treaty.
The History of Māori and Crown Interactions
To understand the role that co-governance plays in modern systems, it is essential to understand the history of interactions between Māori and the Crown. Under the Māori understanding of Te Tiriti o Waitangi, iwi would retain sovereignty in the sense that they had te tino rangatiratanga (chieftainship) over their “lands, villages, and all their property and treasures”.[2] Simultaneously, iwi allowed the Crown to govern in return for protection.[3] Conversely, the English version of the Treaty conveyed that iwi would cede all “rights and powers of sovereignty” to the Crown.[4] The political model that Māori would have expected to arise from the Treaty would likely have been one allowing each party to exercise influence over their respective spheres, with iwi retaining sovereignty and decision-making authority over their resources. However, this expectation was not met and would continue not to be met for decades to come. Co-governance, one of the closest models that is amiable to the current New Zealand political framework, is a step towards this yet remains very ideologically distinct from the initial intention of Māori.
This fundamental difference between the two treaties resulted in a complete breakdown of iwi retaining any authority of government, with the Crown effectively disregarding the Māori version of the text. This culminated in the Chief Justice James Prendergast describing the Treaty as a ‘simple nullity’ in 1877, essentially rejecting any claim to the type of Māori governance promised in the Treaty.[5] The court affirmed this perspective in the 1941 case of Te Heuheu Tukino v Aotea District Land Board, in which the Treaty was interpreted as needing to be incorporated into legislation in order to have any legal effect.[6] This understanding largely remained the political and constitutional position of New Zealand until a century later, when the Waitangi Tribunal was developed as a result of the Treaty of Waitangi Act. Through a slow-moving process, the ‘Treaty principles’ began to be incorporated into legislation such as the State-Owned Enterprises Act 1986. This marked the emergence of the Treaty back into the legal landscape and opened up the conversation to how to accurately uphold the Crown’s promises to iwi over one hundred years after they had been ignored.
Waitangi Tribunal Reports
Even in the early stages of discussion and recognition of the Treaty, the Waitangi Tribunal put forward reports highlighting the vast difference between what Māori were promised and what had eventuated. The Manukau Report given by the Waitangi Tribunal in 1985 stated clearly that the “Treaty promised Māori people the retention of their mana or traditional authority and status.”[7] The report recommended that the Crown recognise the authority held by Māori on the basis of rangatiratanga and mana, and to specifically recognise the authority tangata whenua had over the Manukau Harbour.[8] It also laid the foundations for the ‘Treaty principles,’ which, as mentioned above, would form the basis of the Treaty’s existence in legislation. They identified these as requiring the following from the Crown: active protection; honourable conduct, ensuring fair process, and respecting and balancing each party’s authority.[9] Therefore, it is clear that to uphold these principles enabling iwi retention of authority is necessary.
Another impactful report to consider from this period of reintroducing the Treaty to political awareness is the Ko Aotearoa Tenei report, which aimed to set out what ideal Māori-Crown relationships would look like if intended obligations were upheld.[10] This report concluded that tino rangatiratanga was a ‘constitutional guarantee,’ and that absolute authority over taonga, Māori cultural knowledge and intellectual property should be given to Māori. Carwyn Jones, who worked on the report, suggests that the default position should provide full authority to the Kaitiaki (guardians), with instances of shared interests calling for shared decision-making.[11] In unusual circumstances where shared decision-making is not possible, Jones writes that “it must always be open to Māori to influence decisions that affect their taonga.”[12]
Co-Governance in the Bigger Picture
By tracking these reports, we can see that they culminated in the finding that shared decision making is necessary as a minimum baseline for upholding Treaty obligations where Māori and Crown interests overlap. Co-governance can be framed as a step towards achieving full expression of the Treaty principles, but not necessarily the end goal. For example, whilst it recognises the authority of iwi, it only does so to the extent that iwi are enabled to work within Crown systems. Co-governance fails to provide the mechanisms for authority to be recognised fully independent of the Crown, despite this having intended to be retained by the Treaty. Nonetheless, as we move towards more widespread incorporation of co-governance, it is worth endeavouring to clarify what this system would look like and how it interacts with New Zealand’s existing legal system.
Claire Charters, a scholar in indigenous peoples’ rights, provides insight into why achieving co-governance, let alone full recognition of the treaty principles, may be hard for New Zealand. She comments that New Zealanders are so attached to the value of equality that it becomes difficult “to recognise that treating all people the same under the law can de facto aggravate rather than remedy inequalities facing non-dominant groups such as Māori.”[13] Despite this, she remains optimistic about the wider integration of co-governance into the New Zealand legal system. She notes that the courts have been receptive to departing from strict monolegalism by incorporating tikanga into judicial decision-making. Therefore, in the interests of legal consistency, New Zealand’s “constitutional narrative” should be amended to recognise that in practice, our governance is pluralistic.[14] Accordingly, our legal system does have space for co-governance in the short term and potentially wider recognition of tikanga as its own legal source to work alongside co-governance and Crown sovereignty in the future.
Waikato River Authority Case Study
To shift to the practical application of co-governance, we have already seen its manifestations employed throughout Aotearoa - for example, arrangements such as the Waikato River Authority (created in 2010), the Te Waihora Co-Governance Agreement (created in 2012), and Tūpuna Maunga o Tāmaki Makaurau Authority (created in 2014). The Waikato River Authority in particular is a highly informative case study on co-governance. This arrangement came about as a result of decades of land confiscation from iwi, eventually resulting in the majority of the land surrounding the Waikato River being divorced from the influence of tangata whenua and used for high-intensity farming.[15] Farming practices degraded the river over time, which “severely compromised Waikato River Iwi in their ability to exercise kaitiakitanga or conduct their tikanga and kawa.”[16] In an attempt to remedy this, the Crown settled with Waikato Tainui, legislating for arrangements that would ensure future co-governance and protection of the river, as well as recognition of historical grievances.[17] The Waikato River Authority remains strong to this day. The chief executive of the Authority recently noted that it does not have a “Crown side and an iwi side, but the very clear purpose of what our job is - and what we’re here to do – means they are operating as a single board.”[18] This arrangement clearly shows the beneficial role co-governance can play in our modern world, whilst endeavouring to uphold historically-neglected obligations.
Te Urewera Case Study
As a contrast to the successful Waikato River Authority, the Te Urewera co-governance agreement provides an indication of flaws the co-governance model can have and how it chafes against the reality that it does fail to give full effect to Treaty principles. Tūhoe iwi did not sign the Treaty of Waitangi; therefore, the imposition of Crown authority on their land and people was unwelcome. The shift of control over the land from Tūhoe to an explicitly government-controlled national park forcibly altered their relationship with the land as tangata whenua. Seeking to amend this, the Te Urewera Act 2014 granted the land legal personhood and the area ceased to be a national park.[19] The Act established a co-governance agreement with the values of conservation and cooperation in mind.[20] However, this arrangement has led to friction, most recently culminating in the prolonged closure of the area to tourists as a result of the Covid-19 pandemic and the increasingly dilapidated state of the amenities.[21]
The Department of Conservation (DOC) has conveyed willingness to inject money into resolving these issues. However, Tamati Kruger, chairman of the Te Urewera Board, stated that allowing this would continue the legacy of Te Urewera as a National Park under DOC authority and fail to upskill locals.[22] As an additional issue, conflict and uncertainty has arisen over the legal right Tūhoe has to prevent visitors from entering the area at all. Kruger asserts that authority to do so is entirely within the authority of the Board, whilst the Minister of Conservation’s office states that “there is no legal mechanism available to the board to restrict or prohibit access to Lake Waikaremoana.”[23] The issue with this fractured co-governance arrangement is a difficult one to grapple with when divorced from the historical context of the area. Co-governance of Te Urewera is not understood by Tūhoe as the end goal, but is a stepping stone towards a resumption of authority that Tūhoe never agreed to lose. Kruger commented that “we are committed to washing away dependency on the Crown, and raising maximum autonomy for Tūhoe people".[24] Prioritising the authority of the Crown due to their greater resources undermines the purpose of restoring authority to Tūhoe. In practice, it keeps the land subject to Crown control, and does not practically aid mana whenua in engaging with the land.
The Future (Three Waters)
The importance of co-governance as a step towards resolving past historical grievances leads us to the question of what its future looks like. There is a movement towards integrating ideas of co-governance into the management of public authorities. For example, the Three Waters Reform involves ‘regional representative groups’ being made up of 50% iwi and 50% local council. Despite this falling into the category of co-governance on the basis that the reforms provide for the inclusion of iwi voices, the groups’ authority is fairly limited in scope. The regional representative groups have an ‘oversight’ role, ensuring that the best interest of communities and the environment are upheld. These groups do not play a direct role in the management of the water entities. One of their primary functions is to appoint members of an “independent, competency-based, professional board”.[25] This board is then accountable to the regional representative group ensuring public interests are maintained.[26] We can see through this model how co-governance is being shaped (and likely diluted) to fit the interests of mana whenua into the governing of public entities where this overlaps with the interests of iwi - in this case, due to the involvement of water.
The Three Waters reform is not only an insight into different manifestations of co-governance, it also indicates the receptiveness of the public to future implementations.[27] Commentary from opposition parties frames the co-governance aspects of the reforms as ‘separatist’ and ‘divisive.’[28] Though there may be genuine concerns surrounding the divestment of assets, politicians such as Simon Court have conveyed that in some politicians’ understanding: “the worst aspect of the reforms was co-governance.”[29] This indicates how the discussion around Three Waters has become fertile ground for opponents of co-governance to express their dissent. Divorced entirely from its history and described as an unprecedented and radical shift, co-governance is transformed into an easy target when it is in fact constitutionally difficult to disregard.
Conclusion
Co-governance is a political model which takes steps towards restoring Treaty obligations and upholding Treaty principles. Whilst it provides means of giving iwi authority, it does so in a limited sense that still struggles to see Māori authority as self-sufficient. Despite this, co-governance is a structure increasingly employed in New Zealand. Therefore, it is worth looking at how it is functioning, both positively and negatively, and at how it is being perceived.
[1] Lyn Provost, Principles for effectively co-governing natural resources (Office of the Auditor-General, 2016) at 1.10.
[2] Treaty of Waitangi 1840, art 1.
[3] Treaty of Waitangi 1840, art 2.
[4] Treaty of Waitangi 1840, art 1.
[5] Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72.
[6] Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590 (PC).
[7] Waitangi Tribunal Report of the Waitangi Tribunal on the Manukau Claim (Wai 8, 1885) at 66.
[8] At 70.
[9] At 70.
[10] Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011) vol 2.
[11] Carwyn Jones, “Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity” (22 May 2020) Social Science Research Network <www.ssrn.com> at 4.
[12] At 4.
[13] Claire Charters “Do Maori Rights Racially Discriminate Against Non Maori?” (2009) 34 VUWLR 647.
[14] Claire Charters “Recognition of Tikanga Māori and the Constitutional Myth of Monolegalism” in Robert Joseph and Richard Benton Waking the taniwha; Māori governance in the 21st century (Thomas Reuters, Wellington, 2021) 611 at 612.
[15] Waikato River Authority: A HISTORY OF THE WAIKATO RIVER AND ITS CATCHMENT <https://waikatoriver.org.nz/history/>.
[16] Waikato River Authority, above n 15.
[17] Preamble 17(i).
[18] Glenn McConnel, “How co-governance is already working” (1 April 2022) <www.stuff.co.nz/>.
[19] Section 10(2)(c).
[20] Section 3(9).
[21] Tony Wall, “Lake Waikaremoana and its Great Walk have been closed for months as Tūhoe say the relationship with the Crown has failed” (21 November 2021) <www.stuff.co.nz/>.
[22] Wall, above n 21.
[23] Wall, above n 21.
[24] “Co-governance: Tūhoe on what is and isn't working in Te Urewera” (10 April 2022) Q&A <www.1news.co.nz/>.
[25] Water Services Entity Bill 2022 136-1 at cl 38.
[26] At cl 59.
[27]According to a 1News Kantar Public Poll from January 2022, 40% of voters opposed the reforms, and 35% were unsure: “Poll: More voters against Three Waters than support” (29 January 2022). <www.1news.co.nz/>.
[28] Zane Small, “Government's Three Waters co-governance promise” (29 April 2022) <www.newshub.co.nz/home.html>.
[29] Russell Palmer, “First of 'several' three waters bills introduced to Parliament” (2 June 2022) <www.rnz.co.nz>.
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