Should we be afraid of co-governance? - Gehan Gunasekara

Co-governance falls under article two and not article one of Te Tiriti. Photo / Mark Mitchell

OPINION

There has been a great deal of smoke and mirrors and not much clarity when it comes to the debate over co-governance in New Zealand, whether in relation to Three Waters or anything else.

But what is co-governance and, crucially, how does it relate to Te Tiriti o Waitangi?

Let’s examine the approach of most Waitangi Tribunal and court pronouncements regarding Te Tiriti and its principles. Specifically, what the rangatira who signed Te Tiriti gave up, and what they did not.

Co-governance, if it is to exist at all, must stem from this foundational document.

The te reo Māori version of Te Tiriti was regarded at the time by the British as its authoritative text.

Illustration / Rod Emmerson

Under article one, referencing modern (as opposed to, at the time, inaccurate) translations of the Māori text, the chiefs gave up kāwanatanga or “complete government” over their land.

Under article two, however, they retained “te tino rangatiratanga over their lands, villages and taonga”.

Rangatiratanga is understood to signify something more than property rights under English law and, as we will see, “taonga” or treasure can apply to resources and even in some instances to people.

As the well-known whakataukī states: he tangata, he tangata, he tangata, it is people, it is people, it is people.

In two key High Court cases brought during the Covid pandemic in 2021, the Ministry of Health was found not to have had regard to te tiriti and its principles, especially in allowing Māori to be an equal partner in designing and providing vaccination programmes.

The refusal to share details of unvaccinated Māori with a by-Māori for-Māori health agency was successfully challenged twice.

Notably, “taonga in life and health” was found to be more “highly prized” than any taonga in the data itself.

Co-governance falls under article two and not article one of te tiriti. There is ample evidence to support this.

For example, the Waitangi Tribunal has found the government’s setting up of a statutory monopoly to market and export kiwifruit was found to be a legitimate exercise of kāwanatanga or the Crown’s right to govern under article one, and that no taonga as such existed in the right to international trade.

On the other hand, in its report on the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), despite not questioning the Crown’s right to enter the agreement, the Waitangi Tribunal found that Māori interests had not been adequately considered when the negotiating mandate had been set, therefore breaching the principle of active protection of Māori interests.

Notably, Māori data – when part of mātauranga Māori, or the Māori knowledge system, but not necessarily all Māori data, was found to be taonga and potentially put at risk through the agreement’s inability to guarantee Māori sovereignty over the digital domain.

National leader Christopher Luxon has claimed co-governance is appropriate in relation to treaty settlements, thereby implying this is the only circumstance in which it ought to be acceptable. However, he fails to appreciate the Waitangi Tribunal is charged not only with hearing past grievances but current and future ones as they arise. The CPTPP report is an example.

Surely, it is foolish to wait until a dispute has arisen, with all its attendant costs, instead of seeking to prevent it in the first place by putting co-governance mechanisms in place.

Gehan Gunasekara. Photo / Supplied

After 180 years of co-existence, many taonga in our country are now shared between settlers, tangata whenua and more recent immigrants.

The only rational way to ensure rangatiratanga can still be exercised over them is through some form of co-governance.

Te Awa Tupua is one example: the Whanganui River now owns itself whilst its governance is shared.

Governance is also a better recipe than ownership, which is a very Eurocentric concept at odds with Indigenous value systems including those of Māori.

Ownership is black and white: “I own, you pay me rent” versus governance: “we both share and decide together.”

Te Tiriti o Waitangi has given us a framework for successful co-existence and co-governance in Aotearoa.

We just need the courage to follow it.

- Gehan Gunasekara is Associate Professor of Commercial Law at the University of Auckland Business School.