In an opinion piece in the NZ Herald: Missing voice in the debate on co-governance (13 April 2022) Audrey Young stated:
There are
two probable reasons the Government is not engaging in a proper debate over its
co-governance policy: either it doesn't know what to say or it doesn't have the
right people to say it.
One thing
is clear, however, and this is whether the Government joins the debate or not,
the vacuum will be filled with the views of others, and others' views of the
Government.
One year on
the situation is no better. The Labour
government ducks and dives but offers no explanation of what it means by
co-governance.
The problem
with the meaning of the expression co-governance
is the use of the word governance. Governance means the ways, the processes, and
the values of an organisation. It can
refer to the running of any organisation of any size.
Unfortunately
the word governance is very close to government. The expression is misunderstood to mean
shared government at a national level.
Not only is it misunderstood, the expression is used to deliberately
elevate what is effectively co-management of an asset at a low level to justify
co-governance at a national, governmental level.
Co-management
For Chris
Finlayson, former Treaty Settlement Minister for the National government,
understanding ‘co-governance’ as a term is a vital starting point, as people
often set off from the wrong place with it.
“Getting a
clear definition of co-governance is very important. People say co-governance should really be
‘co-management’."
He goes on to
explain that it is co-management in very specific areas only.
“I don't
obsess about the different versions of the Treaty. I am more interested in what we were talking
about in 1840 when sovereignty was ceded to the Crown, and then a bargain done
that Māori would be treated with same rights and obligations as anyone, and
their taonga would be protected. I think
it is implicit in this that the Crown wouldn’t make all the decisions regarding
taonga, ensuring there would always be room for Māori to have their say. I tried to do this as Minister for Treaty
Negotiations following on from Michael Cullen’s first steps with the Waikato River,
designing a structure to ensure iwi were no longer locked out of any
decision-making.”
Co-management
only applies where there is a Treaty settlement whereby Maori are granted
certain rights in an asset or property which are short of actual
ownership. Examples are the Waikato
River and the Tuhoe land. Because of
those rights Maori are entitled to a seat at the table to decide how the asset
is managed. Fair enough provided both
parties comply with the principles of the Treaty, namely acting in good faith reasonably
etc.
The problem
is that this concept has been enhanced to include all arrangements dealing with
the managements of assets where there is no Treaty settlement and no Maori
rights established. As an example: https://www.newsroom.co.nz/co-governance-its-nothing-like-you-think
Tuku Morgan,
who spent eight years on the Waikato River Authority board, says co-governance
is about collective decision making between iwi and the Crown on important
issues, like cleaning up the Waikato River, or ensuring New Zealand has
the infrastructure needed for clean drinking water and safe treatment of
sewage.
No more, no
less
Note how he adds in “the infrastructure needed for clean drinking water and safe treatment of sewage”. There is no Treaty settlement involving those assets. He continues:
"What makes me really angry is people continue to trot out this nonsense about Māori and a power grab. Co-governance was always about sharing decision-making, equal numbers of iwi, equal numbers of Crown representatives at the table and all down to consensus.”
Co-governance, meaning co-management, only arose because of Treaty settlements post 1975 when Treaty claims were introduced by the Treaty of Waitangi Act. To suggest that natural assets such as drinking water in which Maori have no special rights greater than the general public should be subjected to co-management with Maori does sound very much like a power grab.
Partnership
The driving force behind the growing demand for co-governance on a national level has been the proposition that the Treaty created a partnership between Maori and the Crown, and that Maori should be involved in all decision-making at every level.
In March 2022 Richard Prebble expressed his views on co-governance in: The problem with Labour's co-governance -there is no democratic accountability. He reminded us:
As David Lange put it: "Did Queen
Victoria for a moment think of forming a partnership with a number of thumb
prints and 500 people?"
People have
seized on a statement by judges that in resolving Waitangi claims, it is a
relationship similar to a partnership, in order to claim that partnership is a
Treaty principle.
Where Māori
have a valid property claim, such as to some of our national parks, then
co-governance is a pragmatic solution. It
recognises the Māori property interest while maintaining the public interest in
preserving the parks.
But:
Labour
ministers are now promoting co-governance on the basis that the Treaty is a
partnership even where Māori have no property claim.
Māori interest in having access to health is the same as everyone.
As far as
water is concerned, Māori only have an ownership interest as ratepayers in the
dams, pipes, pumping stations and sewage plants. There is no case for co-governance.
In her December 2022 NZ Herald report Co-governancepolicy - Jim Bolger’s challenge to Jacinda Ardern - Audrey Young reported the views of former Prime Minister Jim Bolger:
Co-governance has been a feature of several Treaty settlements, allowing for management of natural resources such as rivers, lakes, or special areas between the relevant iwi and Crown nominees.
But the Waitangi Tribunal has said that co-governance in social service design and delivery is also an essential part of the Treaty relationship.
And the latest 2019 Cabinet Office circular advising all ministers and government agencies about the Treaty in policy-making reminds them to ask if Māori have a role in the design and implementation of the policy, and to consider whether it could be open to legal challenge as a breach of the Treaty.
She also reported former Treaty of Waitangi Negotiations Minister, Sir Douglas Graham’s views:
The expansion of co-governance from Treaty settlements is related to the concept of partnership, the Treaty principle set out in the Lands case of 1987 by the Court of Appeal.
But partnership had since taken on new meaning:
“The concept of partnership has got legs which it doesn’t deserve,” Graham said.
Nobody had had the courage to argue against it or question the logic behind it.
“So it has got away. I don’t think anybody is explaining what it means or where it takes us or the raison d’etre for the whole thing.”
His view on the potential for difficulties over the partnership decision is not new. In a book he wrote 25 years ago, Trick or Treaty, about being Treaty Negotiations Minister, he said the courts and the Waitangi Tribunal were creating problems in describing the Treaty as a partnership, instead of like a partnership.
"The Crown is not in partnership with Māori in running the country and it would be totally unacceptable in my view if this concept were to be pursued. It implies some sort of joint management with veto rights vested in each party. That cannot be the case.”
The legal situation
- The Treaty and the obligations and rights in the Treaty Articles are not binding in New Zealand law, because they have not been included in a New Zealand statute. (Court of Appeal judgment in the Lands case.)
- The “principles of the Treaty” are defined by the Waitangi Tribunal but only for the narrow purpose of considering claims for breaches of the Treaty. The Tribunal is a commission of inquiry, not a court of law, and its conclusions and recommendations are not binding on the Crown, parliament or in law.
- The “principles of the Treaty” only bind the Crown if they are included in a Treaty clause in legislation that affects Maori rights in property under Article 2, and the court rules that the rights have been prejudiced.
- No other body or individual is bound by any Treaty principles except where a Treaty clause is included in relevant legislation. For example local authorities have very limited Treaty obligations under section 4 of the Local Government Act 2002 and under various provisions of the RMA.
- The only legally binding principles of the Treaty placing obligations on the Crown and Maori defined by the courts are: the duty to act reasonably, honourably, and in good faith; the duty to make informed decisions; the principle of active protection, and the principle of redress.
https://thetreatyfacts.blogspot.com/p/treaty-clauses-and-decisions-of-courts.html
- The Court of Appeal held in the Lands case that Maori ceded sovereignty to the Crown. It also held that the relationship between Maori and the Crown under Article 2 was an arrangement akin to partnership whereby each party owed the other party the duty to act reasonably, honourably, and in good faith in relation to dealings under Article 2. Those obligations only exist between the Crown and Maori and only where a Treaty clause is included in the legislation that relates to the property in question.
- Co-management only applies where there has been a Treaty settlement under Article 2 between the Crown and Maori that grants Maori certain rights in a specific entity such as an area of land, lake or river etc, where a co-management arrangement is considered to be suitable.
- Co-governance in relation to other assets of the Crown or any other entity is simply a slogan that has no basis in law. It is not one of the principles of the Treaty.
Current policies of political parties
National’s current policy is to support co-governance (co-management) of natural resources in Treaty settlements where appropriate but not for social service delivery. It would abolish the Māori health authority.
Act’s policy to dispense with the principle of partnership established by the Court and pass into law by referendum three Treaty principles: all citizens have the same political rights and duties; all political authority comes from democratic means; New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity is illegal.
Separate governance
- The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede their sovereignty to Britain. That is, they did not cede authority to make and enforce law over their people or their territories.
- The rangatira agreed to share power and authority with Britain. They agreed to the Governor having authority to control British subjects in New Zealand, and thereby keep the peace and protect Māori interests.
- The rangatira consented to the treaty on the basis that they and the Governor were to be equals, though they were to have different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis.
In this unlikely arrangement the Crown was to exercise kawanatanga over the settlers, and, quite separately, the Maori chiefs were to exercise tino rangatiratanga over Maori. Where the two intermingled then the arrangements were to be negotiated on a case by case basis.
Although this was a case of separate governance - what might be called apartheid - it became popular among those pursuing the Maori cause. It provided a basis for claiming that the Treaty did not cede sovereignty, that the rangatira retained tino rangatiratanga over their own people, and that there was a type of co-governance arrangement between Maori and the Crown.
The conclusions and recommendations of the Tribunal have not been accepted by the government. In addition, they are not binding on the government, parliament, or the courts. They have no basis in law and can be disregarded.
Surprising turn in Tribunal's latest report
This findings of the Tribunal are summarised here:
The Tribunal found that the two proclamations issued by the Queen’s representative, Captain William Hobson, in May 1840 declaring the Crown’s sovereignty over the North Island and then all the islands of New Zealand breached the principles of the Treaty, as Te Raki Māori who signed te Tiriti had not in fact ceded sovereignty. When negotiating te Tiriti, the Crown did not clarify to Te Raki Māori that it intended to establish a government and legal system under its sole control, nor did it explain that it would assert sovereignty over the whole country, the Tribunal concluded.
The Tribunal found that the Crown breached the Treaty - which did not cede sovereignty - by subsequently asserting sovereignty a few months later, without any consultation with Maori.
The Waitangi Tribunal has now, in 2022, aligned itself with the courts by finally accepting that sovereignty was vested in the British Crown in 1840/1841. There is now no dispute about the fact of sovereignty in Article 1. With the vesting of sovereignty, Article 3 makes sense. The granting of British citizenship to all New Zealanders can only be exercised by a sovereign power. Likewise, the guarantee of property rights in Article 2 can only be delivered by a sovereign power. Any suggestion that the Treaty mandates power sharing of any type, whether a partnership or co-governance, is now unsupportable given the acceptance that the the British crown acquired supreme sovereignty in 1840/1841.
This acknowledgement by the Tribunal should put to bed any claim for co-governance, partnership or any other concept of shared sovereignty.
It is likely that this rather inconvenient fact will be ignored by those seeking to undermine the constitution of New Zealand.
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