Finlayson on co-governance

A very informative article by Chris Finlayson on co-governance. First he covers what he used it for:

Since the late 1990s, governments have agreed in some major Treaty of Waitangi settlements to create boards formed of local government and iwi representatives to manage significant environmental features. These were originally called “co-management agreements”.

The idea was to help resolve long-standing treaty grievances by providing a defined role for iwi to reconnect them with a lake or a river. If we want to get technical, we can go back to article 2 of the treaty, which guaranteed Māori rangatiratanga over their lands and taonga (treasured possessions). So there is a treaty-based reason for doing what we were doing. Environmental features are more often than not taonga to Māori.

So co-governance was used for distinct areas of the environment of importance to an Iwi, and was done as part of a full and final legislated Treaty settlement.

In hindsight, I think one major thing went wrong. The word “co-management” morphed into “co-governance”. I do not know why. It was never intended to mean anything different, but in hindsight, it was regrettable. The problem is that the word “governance” is too close to the word “government”. That creates alarm bells in some people’s heads, but no confusion was intended. Just like “co-management”, “co-governance” was meant to describe the agreements I have set out above, subject in nearly all cases to local authority control. No more, no less.

So it wasn’t about governance in the wider sense, but management of a distinct area of the environment, and generally subject to local authority control.

So, how have we got into the mess we are now in with co-governance? The first reason is that the Peters-Ardern-Hipkins Government has instituted a range of controversial policies that have been referred to as containing co-governance. This has had the effect of expanding and confusing the original concept, but also created fear about what the endpoint might be.

Take the new Te Aka Whai Ora – Māori Health Authority, for example. It doesn’t fit the traditional definition of co-governance set out above, but is it problematic? Yes. It splits out Māori health, which should be at the absolute core of the health system, into a separate bureaucracy. I have heard frustrations directly from a number of iwi leaders about the imposition of yet another layer of bureaucracy when all they need are new nurses on the ground. National Party leader Christopher Luxon was correct to point out at Rātana that we do not need any more Wellington-based bureaucracies like the Māori Health Authority. He committed to providing its money directly to iwi to fund services on the ground. That is excellent, and hopefully a sign of more to come.

So Labour has expanded it from what was management of discrete environmental resources into governance of the health system, of Three Waters and more.

Unfortunately, Waitangi Day this year proved yet again that many in the political class and media are simply unable to engage in debate on these matters rationally. The only party leader who was able to name the three articles of the treaty when asked was Luxon. (In fairness, Chris Hipkins named two, which was two more than Jacinda Ardern managed at Waitangi when she became Prime Minister.)

Luxon went on to set out an orthodox view that co-governance might be appropriate for some article 2 matters, but nothing more than that.

But he also made it clear it is essential for the government to partner with iwi to deliver services on the ground, and that he favours iwi providing leadership at a local level rather than being over-governed from Wellington.

He was upfront that National wants a return to authority being exercised at a community level, whether we’re talking about polytechnics, charter schools or local health organisations. And he was upfront that in many cases that will mean it is iwi providing services. Why? Because that’s how we can best hope to improve the lives of different groups of people.

So, what was the response? Hipkins accused Luxon of stoking fear (an accusation reported uncritically by most of the media) and told him to reflect on his behaviour. In contrast to Luxon, Hipkins has provided no detail about his view on co-governance, and wasn’t even asked to provide any. How depressingly predictable.

The fear is being generated by Labour as they obviously have a radical agenda, but refuse to ever talk about it!

When I first became attorney-general, my first task was to repeal the Labour Government’s Foreshore and Seabed Act and replace it with a new regime that restored and respected Māori property rights. The Foreshore and Seabed issue had been divisive and fraught, and the replacement legislation (the Marine and Coastal Area Takutai Moana Bill) was also very sensitive, particularly given the complexity of the issues involved.

One day, John Key took me aside and told me to get out there and explain what the Government was doing, and then explain it again and again. He told me not to be too lawyerly about it (he was always telling me not to speak like a lawyer). I ended up conducting a nationwide set of meetings to talk about the issue. Tensions often ran high and they were not always pleasant occasions. But they were important.

At one particularly fraught meeting in New Plymouth, I asked one elderly man how he would react if his right to go to court had been taken away, at which point he shrugged and said he supposed he agreed. It was little breakthroughs like this that would have never occurred had I not made the effort. The law passed and its tests are being routinely ignored by the courts, but that is an issue for another day.

So, why won’t the government do the same thing with the range of policies it is introducing?

When is the last time a Minister fronted a public meeting on an issue such as Three Waters?

The result is that the Hipkins Government will likely learn its lesson the hard way. In the meantime, co-governance – a limited, successful concept intended to address treaty grievances – has morphed into a source of genuine concern for some New Zealanders. ­­And they are owed an explanation by the government as to why it has allowed this situation to arise.

At the election, we will get a chance to explain out back to them.