What on Earth is co-governance?

By: Democracy Action

‘Co-governance’ is an emerging and developing model of decision-making in New Zealand. This term refers to a shared governance arrangement – commonly with representatives of iwi on one side, and representatives of central and/or local government on the other, each having equal voting rights at the decision-making table. The introduction of the co-governance model began over a decade ago, as a method to govern specific natural resources. Many of these arrangements came about as part of Treaty of Waitangi settlements, such as the co-governance of Te Urewera Park, the Waikato and Whanganui rivers, and 14 tupuna maunga/volcanic cones across Auckland.

However, under the Labour government, the spread of co-governance has become endemic. Not only is the co-governance model increasingly being implemented by the government to manage natural resources, but it has now extended to public services such as the new water utility companies, and the new national health system, which now has a dual governance structure – one for Māori citizens and the other for all other New Zealanders.

Additionally, a growing number of community organisations are seeking to or have established governance structures to reflect what they see as their commitment to Te Tiriti o Waitangi. Doing so can be a requirement to receive government funding. These approaches usually involve shared decision-making power for tangata whenua (Māori) and tangata Tiriti (non-Māori) at the governance level, often including co-chairs for the organisation’s governing board or committee.

The Occupational Therapy NZ’s Te Tiriti Relationship Governance Model The genesis of the co-governance concept Over the last 40 years a combination of the Waitangi Tribunal, the courts, academia, and successive Labour and National governments have progressively changed the meaning of the Treaty of Waitangi, based on a modern-day translation. This includes the misconception that the Treaty created a partnership between the Crown and Māori. The claim to partnership is the argument for the introduction of co-governance arrangements today.

The idea the Treaty of Waitangi created an enduring partnership between Māori and the Crown was first mooted in the 1980’s, more than 150 years after its signing. In 1987, in the landmark case of New Zealand Māori Council v Attorney-General before the Court of Appeal, the President of the Court, Justice Cooke, held that “the Treaty [of Waitangi] created an enduring relationship of a fiduciary nature akin to a partnership [between Māori and the Crown], each party accepting a positive duty to act in good faith, fairly, reasonably and honourably towards the other”. Nowhere did the Court cite any legal authority for what has transpired to be such a revolutionary concept. This has had a significant flow-on effect on how the Treaty of Waitangi is interpreted by the courts, and on subsequent settlements of Treaty claims.

Although Justice Cooke likened the relationship to the obligation partners in a partnership have to each other, he did not say that the Treaty created a partnership. As retired District Court Judge and Canterbury University law lecturer Anthony Willy noted a few years ago: “Māori and the Crown are not partners in any sense of the word. It is constitutionally impossible for the Crown to enter into partnership with any of its subjects.” Notwithstanding this impossibility, the idea the Treaty created an enduring partnership was promptly picked up by both the Waitangi Tribunal and the 1987 Iwi Leaders’ Forum. From that time the Tribunal and this powerful interest group have achieved enormous success in claiming “partnership” as the justification for constitutional change and ownership rights.

The impact of co-governance on the nation Up until recently New Zealand has had one of the world’s oldest, most enduring, and stable democracies - a democracy the envy of many peoples. However, democracy and political stability are seriously undermined by the growing prevalence of the co-governance model and other undemocratic arrangements, and exclusive racialised provisions in legislation and government policy. These changes are having a profound impact on our constitution - changes for which the peoples’ agreement has never been sought by the government.

Briefly, negative effects of the 50/50 co-governance model in the New Zealand context include:

• the undermining of one of the world’s longest standing and most successful democracies;

• the disproportionate amount of power placed in the hands of one sector of the community. This disregards the principle of equality of citizenship, on which our democratic constitutional arrangements are based;

• the undermining of democratic accountability;

• veto power in the hands of those unelected by and therefore unaccountable to the wider community;

• racial division, fostering a them and us mentality, which can easily morph into a ‘them versus us’ attitude; All of which have a detrimental impact on racial harmony and social cohesion.

Co-governance not necessarily the end goal Te Parti Māori, iwi leaders, and others have indicated that co-governance is only a step on a journey to full authority and control. Such an intention is realised in the new Water Services Entities Act, which not only establishes a 50/50 co-governance boards at the apex of the Entities, but also goes much further in a different type of constitutional arrangement from anything we have seen before. The Act gives local iwi and hapu extensive and exclusive rights which effectively amount to full authority over the management of water in each catchment area. It does so by allowing any number of iwi and hapu to provide Te Mana o Te Wai Statements, which the Water Services Entities must give effect to. There is no equivalent directive power provided for local government, nor the opportunity for other communities who have an interest in freshwater to have the same input.

What the future might hold for New Zealand New Zealand is at a crossroads. Our choice for the future is either as a democratic state based on equal rights for all, or an ethno-nationalist state with separate, race-based governance.

The probable future if New Zealand continues down the current path will be an end of a united sovereignty, to be replaced by co-governance complete with two parliaments organised under two totally different systems and cultures - one democratic and the other based on tribal tikanga. We will become two peoples with vastly different rights. The Labour Government is already considering such a future for New Zealand. In 2019 it commissioned a report to outline what it needed to do to realise its commitments to a United Nations Declaration on Indigenous Rights. Māori Development Minister Willie Jackson has labelled the resultant report - He Puapua - merely a discussion document and not government policy. However, the reality is that several of the proposals contained in the report have already been implemented, and others are progressively being imposed by the government.

A rift between the races in an ethno-nationalist state paints a very bleak future for New Zealand. Based on humanity’s historical experience and an understanding of what works, the only way to a harmonious future is to work together as a nation of equal citizens irrespective of ethnicity – equal before the law, with equal rights and duties, each with an equal vote in a democracy.

As Dr John Robinson, former university lecturer and research scientist writes of this in his latest book, ‘Our Choice for the Future Equality or Tribal Rule’: “New Zealand is in big trouble, a divided country. Many arguments have been put forward to divide us, based on documents from the past, with the meaning of each hotly debated.

We need not be directed by any of that. Rather we should be guided by basic principles that we can all agree on when we meet to debate our choice for our society, no longer held hostage to the shackles of the past. The question for today, as always, is what sort of society and what sort of country do we want? In answering that question, we must be free to think for ourselves, and consider what is best for us, now, in today’s world. What guides us in a search for a decent and prosperous nation? This core principle is for equality. We must be one, with government by us all, working together as equal citizens – equal before the law, with equal rights, each with an equal vote in a true democracy. That basic condition is not met today. Co-governance, shared rule by two separate peoples, is only possible when we are divided into two race-based groups, Māori and the other, where one’s position in society is defined by ancestry, determined by accident of birth.

When the choice is for equality, co-governance and all the considerable apparatus of separation must be decisively rejected.”

Further reading • Gary Judd KC: Lawyers must reject co-governance and coercion • Professor Elizabeth Rata: The Road to He Puapua – Is there really a Treaty partnership? • The Democracy Project: Dr Philip Temple: Nothing to fear? A response to Willie Jackson on fairness and co-governance • The Democracy Project: Dr Bryce Edwards: Is Three Waters really about water infrastructure or iwi co-governance? • The BFD (July 2022): Graham Adams - Our Prime Minister’s Two-Faced View of Democracy • Rt. Hon Winston Peters: ‘Co-governance Is Not Democracy’