This is a re-post of an article originally published on pundit.co.nz. It is here with permission.
The (new) Prime Minister said nobody understands what co-governance means, later modified to that there were so many varying interpretations that there was no common understanding.
Co-governance cannot be derived from the UN Declaration on the Rights of Indigenous Peoples. It does not use the word. It refers to ‘government’ on only three occasions.
Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. (Article 4)
The organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration ... (Article 41)
The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith. (Article 46)
The spirit of the declaration is in Articles 4's reference to self-government. Aotearoa New Zealand has progressed this in recent decades including giving Iwi a sounder financial basis and establishing institutions like Kohanga Reo, Māori broadcasting and the Māori Language Commission.
The notion of co-governance was introduced into the New Zealand dialogue by the 2020 report He Puapua, written by a Technical Working Group on a plan for the UN Declaration, established by Cabinet reporting through Te Puni Kōkiri (the minister was Nania Mahuta). The group was, of course, independent but a different membership could have come to quite different recommendations. (Suppose Winston Peters had been on it).
He Puapua does not actually define ‘co-governance’, but it recommends ‘the establishment of a high-level co-governance body comprised of equal numbers of government ministers and Māori representatives.’ There are numerous other references to the notion which underline the ambition of the report. It suggests consideration should be given to the creation of an ‘upper house in Parliament that could scrutinise legislation for compliance with te Tiriti and/or the Declaration. Various models for the composition of such a body could include a partnership model (with 50/50 rangatiratanga and kāwanatanga representation).’ The report’s conclusions were not adopted by the cabinet.
The reference to ‘rangatiratanga and kāwanatanga representation’ means that the report observes the division in the Tiriti o Waitangi expressed in the first and second articles, which distinguish between the two roles. He Puapua wants to merge them.
In my judgement, the UN Declaration is very much in the spirit of te Tiriti, emphasising the notion of rangatiratanga, although it does not use the word. It mentions self-government (which may be the opposite of co-governance) and repeatedly refers to the rights the indigenous have to their lands or territories and other resources – that includes, of course, the right to alienate them.
However, there is a problem about te Tiriti which is rarely confronted. When it gave responsibility for kāwanatanga to the Crown, neither Hobson and his English associates nor the Rangatira who signed the document envisaged the extensive government that would evolve. New Zealand adopted a centralisation strategy in 1876 when the provinces were abolished and local government dis-empowered. (No consideration was given to the impact on Māori local self-government.) Subsequently the centralised state extended its powers. It has been doing so ever since. The last big attempt to reduce the scope of the state was under Rogernomics, but that was more about strengthening the power of business rather than of individuals and localities. (In a number of areas – where there was government funding – the state strengthened central control.)
I would not help to try to guess what Hobson and the signing Rangatira might have thought of the current state. Hobson’s instructions from the British Government envisaged a minimalist state (as Britain was then, compared to today), while the Rangatira were already living in a minimalist one.
So what are we to do about interpreting te Tiriti in the light of today’s state? He Puapua seems to want to merge the kāwanatanga and rangatiratanga provisions of articles one and two. I suppose that is a solution to dealing with the centralisation. I prefer to retain the integrity of te Tiriti.
I have argued that te Tiriti is in the form of a social contract. (Here and here.) That maintains the separation of the two articles, but accepting this as an underlying principle would require us to ease back on the centralisation of the state. That would not be popular. Even our most right-wing parties, faced with a problem, support centralisation, just like the rest of us. Like all of us, they advocate less government in the areas where they have a particular interest. But this is not a political philosophy, it is using the state to pursue self-interest.
So we are likely to continue to muddle through. Even so, we are going to have to think with much more precision.
Take the question of the governance of water. We have successful co-governance arrangements for the Waikato River (and some other natural resources). In my view they are justified by the fact that English law and Māori practice had different property rights in regard to rivers. For the former, the owner of the bank owned to the middle of the stream. Māori involved much more complicated arrangements. I suppose a case could have gone to the courts, which would have eventually led to some direction which, as in the case of the foreshore and seabed, would have remained ambiguous and required legislation (after much political upheaval). Instead, common sense led to the partnership of the current co-governance arrangements.
The Three Waters proposal is quite different from arrangements involving natural resources. It proposes four entities with, eventually, around $200 billion of assets with their governance shared between Crown and Iwi. How does it relates to assets to which they have contributed no funding. The justification that Māori have an interest in the assets through the rangatiratanga provisions of te Tiriti is not compelling. I am relaxed about the proposition that Māori have such a substantial interest in water via article two of te Tiriti that they should be involved in the issuing of water consents – and may well be entitled to a payment for the water taken – but that is not the same thing as involvement of billions of assets.*
As I write, the government seems likely to back down over co-governance of the Three Waters. (Personally, I think it should back down over the whole centralisation proposal and locate the governance and management at a more appropriate local level.) But that will not resolve the central problem. Kicking co-governance down the road until after the election leaves it as a political hot topic. Many will assume that the government – if reelected – will implement their worst fears after the election. Dog whistling will drown out sensible discussion. Muddling through about co-governance in its widest form is not a viable political option even if is the only option on the table.
* It is proposed the substantial borrowing for the three waters management assets will be secured against ratepayers. Does not co-governance mean half the borrowing should be secured against iwi assets?
Brian Easton, an independent scholar, is an economist, social statistician, public policy analyst and historian. He was the Listener economic columnist from 1978 to 2014. This is a re-post of an article originally published on pundit.co.nz. It is here with permission.
48 Comments
https://www.beehive.govt.nz/release/national-govt-support-un-rights-dec…
UNDRIP is non binding & Maori will not have a veto.
How hard is it for the government to articulate a clear vision for what co-governance (or is that 'mahitahi' - according to Chippy we might just need a rebranding) entails at the "end state", put that forward as official policy as part of the upcoming election and then let us plebs vote on the suitability and benefits thereof?
Agree Hemi.
It is clearly intended to be muddled, confused and inarticulate messages!
They (Iwi elites & selected political elements) understand 100% what the want to achieve & why!
The MSM are paid significant money as part of a clever multi-directional campaign, designed by PR experts who facilitated JA's idiolised international brand. These are clever people constructing well strategized campaigns thanks to the tax-payer!
This last calculated reshuffle of the Beehive bums is to facilitate re-election to allow one additional term. I'd say one additional term is required at minimum to re-engineer society into something approximating the vision of the above parties.
Sad that it takes multiple death threats towards politicians to appreciate that all is not well in Paradise and for people to actually demand honest debate.
* It is proposed the substantial borrowing for the three waters management assets will be secured against ratepayers. Does not co-governance mean half the borrowing should be secured against iwi assets?
Governance and ownership are unambiguously not the same thing with the former being the stewardship of an entity on behalf of the shareholders who are the beneficial owner of the assets, completely different. Does/did 3 waters assign ownership of 50% of the assets to iwi? Not to my knowledge.
A thoughtful discussion nevertheless.
* I would also add the iwi are generally unable to pledge assets as security because the title is not freehold. This is quite a disadvantage when trying to access capital.
In 300, or less, years we will all of us have come out in the wash together, so why the great concern about who we are individually now. New Zealand is young. Do the folk in the United Kingdom go about stressing that they are Celt, Briton, Saxon or Norman? Yes they might well say they are English, Welsh or Scot but whether they like it or not each and every one of them is a blend and eventually, given the same time NZ will be ditto.
A good summary. I like the notion of mahi tahi - working together - which for me means recognising that the ways of thinking and ways of doing differ between the two cultures.
Māori have always been expected to think and do within the Westminster governance (kawanatanga) structure via the Māori seats in Parliament. The self-determination (rangatira) aspect of Te Tiriti has never been realised. I'm surprised that He Puapua recommends a 50/50 (co-governance) upper house. To mind mind it should be a Māori upper house - all members (be they Māori or non-Māori) being selected by iwi/hapu based on their own ways of doing - and basing their considerations and recommendations to the House, solely on the Māori text of Te Tiriti. I'm also surprised that He Puapua limits the function/powers of the upper house in the way it does. That is very appropriate.
It's ironic really that the authors of He Puapua demonstrated such restraint as to be the ones who suggested co-governance. Co-governance does not to my mind fulfil the intent/interpretation of the rangatira who signed Te Tiriti. Rangatiratanga is about rule in accordance with tikanga (similar to what the Queen/King of England does - for example, in practice by meeting regularly with the PM and in law by giving Royal assent to laws) over your own people and assets; whereas kawanatanga is about governance/law-making.
So, the upper house looks at the proposed laws of the House of Representatives and lets them know how such laws either impact or improve on their ability to rule in the best interests of their people and assets based on the contract entered into in the signing of Te Tiriti.
I agree with Brian - co-governance as a concept is not contained in Te Tiriti. Governance and rule are two separate concepts - one assigned to the Crown and the other to the chiefs.
Not sure what you mean by a contradiction. Many non-Māori are highly respected by iwi/hapū for their historical analysis/understandings of tikanga, Te Tiriti and Māori social and governance structures prior to widespread immigration to this country. My point being, appointment of members to an upper house should be determined in accordance with whatever rules/processes that iwi/hapū determine to be appropriate for them.
Are you saying such independent choosing by iwi/hapū would open up the representation to bribery? Is that your understanding of koha?
The concept of gifting, exists in many cultues including western - e.g. bring a bottle of wine to dinner, send the kids off with a pack of chips to friends.
1. (noun) gift, present, offering, donation, contribution - especially one maintaining social relationships and has connotations of reciprocity.
The reciprocity is the issue, you pay x, for y to happen. That is not a gift, that is a payment/transaction. The issue is the formalisation and integration of "koha" as a primarily cash transaction in return for something.
A company is not "gifting" $10k to a hapu for hosting a meeting, they are "paying" for an acceptable decision at the meeting. The question is, is that bribery or "Koha"?
If you read the definition fully, you can see that the expectation of reciprocity is contextual.
And not sure what the objection is to payment for meeting space - you pay to rent/hire a community hall. And there is no concern that the one who hires the hall will get some kind of under-hand repayment in terms of any decision-making taking place in the hall.
The thing about a marae is there is no price list for hire for reasons of tikanga and tapu. Everyone is welcome on a marae.
I'm not saying bribery doesn't exist across all cultures - but the notion of reciprocity in the tikanga of koha was not conceived as a "you pay x for y to happen". The origin of that is more prominent out of the US political system (i.e., "pay to play") lobbying and donation.
I think the difference is, that when hiring a meeting space/venue/catering, there is an upfront agreement/contract put in place (usually with a third party), GST is paid, and it is seldom paid for in cash.
I'm not saying bribery doesn't exist across all cultures - but the notion of reciprocity in the tikanga of koha was not conceived as a "you pay x for y to happen". The origin of that is more prominent out of the US political system (i.e., "pay to play") lobbying and donation.
My point re the above is more that Koha was (and in many places) is still a true Koha. It is the corporate/Political world where it has been corrupted to be a "you pay x for y to happen". It is often literally a cash envelope handed over at the conclusion of a meeting, that can be "accounted" for as Koha. No further explanation required, no tax, no reporting.
Why do you think there are two cultures in this country? 15 years ago my PI children mixed with Pakeha and Māori and other PIs more than they did with the Asian cultures who are common in North Shore Auckland. Purely anecdotal Asians walked home from school together but the rest intermingled. It may have improved since then. Yet again anecdotally the Māori I know are proud of Māori ancestry but culturally are similar to bog standard Kiwis. [They are prouder of their ancestry than Europeans other than the Scots and Irish.] The Maori I know are not that dramatically different to Pakeha.
Suspiciously biculturalism seems to have evolved only since NZ absorbed multiple cultures.
I should have qualified the two-cultures statement with reference to the signing of Te Tiriti. And you are very right, we are now multi-cultural and it's great that this gives us such an opportunity to experience/understand so many different ways of thinking and acting.
The evolution of bi-culturalism (i.e., the distinction between the cultures of the two peoples represented by the treaty signatories) has roots in Te Tiriti itself. So, to my mind, the more we discuss Te Tiriti, in its historical context, the more understanding of both cultures we gain. This is a wonderful article on a Māori perspective on the history of immigration policy and its link to treaty issues;
New Zealand Immigration and the Political Economy
No, I don't agree with that at all. All the other cultures who have migrated to NZ have a place/country-of-origin that celebrates and 'keeps alive' their own culture and traditions. Māori have no other place, this is their tangata whenua.
Think of it this way, we celebrate and protect the kiwi species here, whereas China celebrates and protects the panda species there. That is because each society cares deeply that that is their obligation/responsibility.
A very thought provoking and very important issue. I am in the final stages of writing up a history of our Maori family who managed to survive the terrible period from 1865 onwards in Turanga (Gisborne). Prior to 1865 my ancestors were discussing exactly this issue of how to share local governance with Central Government and meet both the rangatiratanga and kawnantanga principles of the Treaty of Waitangi. Up until that time we had continued to use the ‘runanga’ method which basically meant local Maori dispensed justice the old Maori way but with the added enlightenment of christian teachings and respect for individuals and property as per the treaty. How to transition to a new system where the ‘rule of British law’ and all the institutions that support that along with other Central Government institutions was the topic of debate locally. It all came to nothing unfortunately as Central Government was only interested in the total subjugation of local Maori autonomy and the theft of our land and assets. So we Maori now find ourselves in the position of being beggars in terms of being able to negotiate in good faith for a fair share of this country’s wealth and resources and the administration thereof. I would like to see a system whereby us as descendants of those who were dispossessed can thrive in a system that treats them fairly as laid out in the articles of the Treaty of Waitangi. Which was the original intent of my ancestors prior to 1865 at Turanga.
To clarify -
Up until that time we had continued to use the ‘runanga’ method which basically meant local Maori dispensed justice the old Maori way but with the added enlightenment of christian teachings and respect for individuals and property as per the treaty. How to transition to a new system where the ‘rule of British law’ and all the institutions that support that along with other Central Government institutions was the topic of debate locally.
Does that mean that a local Māori had to accept the judgement of 'enlightened' tikanga in the matters of justice? That is, was there any appeal to be afforded the rights of a British subject (i.e. access to justice in the Courts instead)?
I ²hate the word change
Change is a word used by people who do not know the solution to the problem but need a quick answer!!!!
It means nothin!
Does a chess master move his pieces just for change or for a ...
Tactical advantage
To improve his situation. Or to...
Negate a threat
FFS " change Has no quantifiable value to it!
It seeks not to improve and offers no goal to achieve!
In yacht racing you make adjustments (one at a time) to go faster you never change anything!
Change is a word used by people who do not know the solution to the problem but need a quick answer
Let's stop dancing around the issue a la government funded Stuff etc. Co-governance as most of us understand it means ceding part of my vote away - 50% of the vote goes to the say 10-17% of the population who decide to be involved this way, and 50% of the vote goes to the balance 83-90% of us. So the 10-17% have voting power that is about 2.5 times as strong as the rest of us. That is not 'tweaking' democracy, it is simply not democracy anymore. Lets start talking openly and honestly from this starting point. Then while we're at it move on to where co-governance has failed, such as the Ureweras, and how legitimate concerns about how this has turned out can be resolved going forward.
Bernard Hickey dismissed the controversy around co-governance as a 'side-show'. Any proposal to significantly diminish my rights as a human being to rectify the sins of someone else 160 years ago should be the main issue of this election.
If the best we can do to right the wrongs of the past is give one group enhanced rights at the expense of another group, we have a real deficit of thinking in this country.
Yes, unfortunately that is how co-governance seems to be creeping into legislation (e.g., three waters, RMA reform, etc.).
Te Urewera is a bit different - that's more an expression of rangatiratanga/rule, or self-governance. The dispute is amongst iwi/hapū, and is (to my mind) for them to resolve internally. I think it was disappointing that the court stepped in in that case. If the appointed guardians are thought to be doing a bad job of representing the forest (in the sense of loco parentis), then I was disappointed that the matter was taken outside the marae where it should have been adjudicated.
Again, the distinction needs to be made between kawanatanga and rangatiratanga - and co-governance isn't (to my mind) a part of either, based on my reading of Te Tiriti.
It's actually great to be having the discussion - should have happened much earlier, as soon as the work by the appointed task-force on He Puapua was completed.
Personally I agree re Te Urewera.
Problem is that this article outlines one particular view of co-governance, one that reads as actually quite particular to Brian Easton. You have one. Simon Wilson has a view that translates into, if you disagree with whatever version of co-governance is in Three Waters, you're a racist (not my words - https://emilywrites.substack.com/p/the-explainer-the-governments-three).
All totally different.
Three Waters is the centralisation of water assets away from local authority's. You can think that's a good, ok or bad idea - I really couldn't care.
With respect to 3 waters co-governance, the Crown has taken legal advice and there are two specific Te Tiriti (a statutory and constitutional agreement) principles applicable - partnership and active protection. These aren't nebulous "lefty, woke" fluff, they are obligations encumbent upon the Crown that have evolved from our judiciary when litigating Te Tiriti cases. You can't vote these away and you can't ignore them. Act could get a 75% majority and Maori could go straight to court and block any significant infrastructure project dead in the water.
As Gareth Morgan once said, Maori have been extraordinarily generous in forgoing some of their rights and sharing the resources of Aotearoa over the years.
I'd like someone with actual legal expertise to correct me, but I was of the understanding that parliament can basically "do what it likes" in terms of passing laws. We aren't the United States, where every bit of remotely contentious legislation seems to wind up going to the Supreme Court.
Wouldn't that mean that, in theory, if there was an in-power political party/coalition with the political will and capital to do so, they could just ride roughshod over any Treaty obligations (in other words they could be voted away)?
Much the same that if Labour decides tomorrow that co-governance means 50% of your property is owned by the local iwi, they could pass that law as they have the majority to do so with?
I'm talking hypothetically here from a legal perspective only ... "real world consequences" of either extreme approaching being damned.
As mentioned, I'd like to be corrected/understand this better.
Not a lawyer but generally my thought is the answer is no - as we do have courts and there is much precedent and rulings in common law - in addition to various statutes that recognise Te Tiriti.
The one thing that a simple majority could be do is abolish the Māori seats in Parliament - my understanding is that that aspect of our electoral and constitutional law is not entrenched (meaning it does not require a 75% majority to amend).
This information on our constitution is helpful;
https://teara.govt.nz/en/constitution/page-3
Linked to the specific commentary on entrenchment, but the whole section is relevant to your question.
Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. (Article 4)
If taken at face value, that means that here in NZ, Maori should have the right to rule themselves totally; their own lawmakers, their own police force to enforce them, their own borders and so on AND, the 'means' in other words the money to do all this. Where would that come from?
This is insane and just who accepted this? John Key? I cannot believe that is in the best interests of Maoridom to try and go down this path.
Another important question that needs to be clearly understood: Who governs New Zealand?
Is it the people? Or is it Parliament? Or is it something else?
Can the government legitimately do absolutely whatever it likes so long as it has enough votes? Or is the government subject to the agreement of the people through the ancient rights that we have via the Jury process?
According to the Magna Carta the People have final say.
https://www.commonlawconstitution.org/
So, can a government abridge any of the ancient constitutional rights and liberties of the people?
Take a read of that website and think about the impact that so-called "co-governance" that Labour and the Greens are trying to push onto the people of NZ will have on our rights and liberties.
I read an article about how easily AI should be able to generate content and rile people up on a topic. The article mentioned the quality of writing that got shared around during the vaccination stoush vs what AI can produce right now as evidence that this is already possible.
I know what people believed at face value and sent to me so this is pretty convincing.
It could scientifically be validated that all beings are hybrids and that 'race'. 'ethnicity' or culture is a construct that is designed to perpetuate mini monarchical type structures/networks within larger society. It could also be argued that all persons regardless of race ethnicity or culture suffer at the whim of others. I view race, culture, ethnicity as constructs that should be granted the same freedoms as those of religion. The danger I see (NZ) is that of a communist state being funded by the democratic state. Tribal societies on the surface have much to offer but they also tend to favor certain bloodlines and or ideals. Europeans had serfdom , Maori have tribalism an earlier form perhaps. (Enlightenment) We are a young country compared too many and it is easy for some to reify certain pluses whilst washing away the minuses ...but tribal lore is much different to english law. There was darkness before the light and many will now have forgotten this. Add to the mix the ideal of a multi-cultural NZ then NZ's predicament becomes complex. I believe in individualism and the power it grants its beholder. If folk choose to gather together under an umbrella I am fine with that. But when those folk are able to impede my individualism my tolerance is tested. ...Heres hoping a way forward is found that all can agree on.....
People seem to be interpreting the treaty in different ways, it is beyond time we scrapped it in favour of a new constitution which guarantees equal rights and responsibilities for all and recognises we are a multicultural society not simply a bicultural society as when the treaty was signed.
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