The signing of the Treaty of Waitangi. Photo / via Alexander Turnbull Library
If you've detected more intensity around Treaty of Waitangi issues in recent years, it has probably been over issues such as the Three Waters Reform and the Māori Health Authority.
The solutions to the problems of poor Māori health and inadequate water management involve proposals based on the principle of partnership under the Treaty.
And when "co-governance" is added to the mix with, for example, plans to give iwi a 50 per cent say over water management, the debate has gone deeper to whether it is anti-democratic or race-based policy.
"Partnership" has been a well established and settled principle of the Treaty of Waitangi that has been followed by successive governments for the past 35 years in varying ways.
But "co-governance" is a more recent concept – which was embedded in policy by the last National Government.
It should be noted that not all partnership arrangements are co-governance, but all-governance arrangements fall under the broad umbrella of partnership.
And the reason there has been a concerted focus on such arrangements is because Jacinda Ardern's Government made "closer partnerships with Māori" one of its top priorities.
Labour's Māori caucus ensures it is more than just a hollow promise. With a powerful bloc of 15 MPs, including six ministers, it is in regular negotiation with the Labour leadership to make gains for Māori.
The Māori Health Authority will be set up to develop and implement a health plan with Health NZ for both Māori and the rest of New Zealand. The Cabinet paper behind the law said it would have a veto. It is not a term that has been replicated in the establishment legislation but the two agencies will clearly have to operate with the other's agreement.
Māori Development Minister Willie Jackson is one of the more important power brokers within the caucus and says he takes a pragmatic approach rather than an ideological one.
There was not a formula that suited every situation and Kiwis had nothing to be scared of he says.
He does not see the health model as a co-governance, more an independent model, although National and Act disagree.
Jackson himself had a recent victory in securing a Cabinet commitment to an ongoing share of 20 per cent of national commercial broadcast spectrum allocations, at no cost.
Plus he secured $75 million in spending money for a yet-to-be established Māori Spectrum Entity, and a role for Maori in spectrum policy-making.
It was a big week for Covid and did not receive much coverage - although the Herald technology editor, Chris Keall, covered it extensively.
And Jackson is chuffed with the result.
"What I strive to do is obviously just improve things. Whenever we can get deals, wherever it works with different groups, then let's do the deal.
"I never go in with a set strategy [like] 'we've got to get 50:50 or there's no deal here.'
"We have been factored out in so many areas, in so many places that I'll take what we can get sometimes. And that's why we took 20 per cent of the spectrum."
Early in the second term of the Government, he secured an agreement for the public service to award 5 per cent of the $42 billion procurement budget to Māori businesses.
Jackson is not the minister responsible for the Treaty of Waitangi – Kelvin Davis is in charge of the ongoing Crown-Māori relationship and Andrew Little is in charge of Treaty of Waitangi Negotiations.
As well as being a power broker within the Māori caucus, Jackson is developing a draft declaration about the goals of Māori in terms of partnership, co-governance and tino rangatiratanga.
It is the Government's next steps after the He Puapua report on the UN Declaration on the Rights of Indigenous People, signed by the previous National-led Government, and Jackson says non-Māori will be consulted on it.
The spectrum deal is not what would be called a co-governance arrangement but it is definitely within the realm of a partnership arrangement. It is effectively an allocation of a property right worth millions of dollars in the market and which may lead to commercial partnerships.
The 20 per cent figure is the same as that negotiated in the 1992 commercial fisheries settlement in which Māori were allocated 20 per cent of the fisheries quota in another pan-tribal deal.
There is debate about what makes a partnership when Māori make up 17 per cent of the population – 20 per cent in commercial arrangements has been the norm but Jackson says anything defined as co-governance or co-management should give Māori equal say.
"I would define it as 50 per cent ... whether we can get that 50 per cent, that's another argument."
Jackson also believes the fact that iwi have settled their Treaty of Waitangi settlements with the Crown for so much less than their actual losses puts an onus on the Crown to work closely with Māori.
Ngai Tahu and Tainui's losses ranged between $15 billion and $18b and they settled for $170 million.
"Surely the Crown has to do a little bit more than pay $170m.
"If you have ongoing relationships in terms of co-management or co-governance, what problem is that going to be?
"We just know that it was absolutely imperative that the Treaty settlements processes have the added bonus of co-management, co-governance and that is obviously not going to work in every area of society."
The Māori caucus was not rabid about that, he said.
"We are cognisant of what is happening with society and we want to work in with society," he said.
"We don't want to work against society. We hope that they respect that Māori just want to have a say that they never had before."
The main focus for the Labour Māori caucus had been on getting Māori ministers and advancing Māori initiatives through the traditional portfolios of health, housing and education.
Priority to "build closer partnerships with Māori" was identified as an early priority for the Jacinda Ardern Government going back to its first term in coalition with New Zealand First.
Between returning from maternity leave and heading the United Nations for the first time, Ardern in 2018 teamed up with New Zealand First leader Winston Peters and confidence partner James Shaw in Auckland to launch the Government's 12 priorities called "Our Plan".
Building closer partnerships was hardly a surprising priority. The previous National Government had been doing just that through policy gains of its confidence partner the Māori Party, through an accelerated programme of treaty settlements and through high-level engagement with the small Iwi Leaders' Group and the Iwi Chairs Forum.
When Labour came to power in 2017, it had gotten rid of the Māori Party altogether (it is now back), and was looking to broaden Treaty relationships beyond the iwi elite.
But National turbocharged the partnership concept with co-governance arrangements to manage natural resources under Treaty settlements negotiated by Treaty Negotiations Minister Chris Finlayson.
They cover such resources as the Waikato River (a deal begun by his predecessor Sir Michael Cullen, the Whanganui River and Te Urewera National Park.
Jackson acknowledges the National Party's record: "I hate to say it but I think the Tories were the best at rolling it out, even though they don't want to admit it."
The 14 volcanic cones in Auckland are also managed in a co-governance model between iwi and Auckland Council on the Tupuna Maunga Authority.
Most recently the concept of co-governance has been included in the Three Waters plan for water management reform which provides for the four boards to run the proposed four council-owned entities managing water to comprise 50 per cent iwi membership.
The details of any partnerships councils in the replacement for the RMA, the Natural and Built Environments Bill, are yet to be finalised.
National and Act oppose the Three Waters deal and the Māori Health Authority.
But Finlayson, who left Parliament in 2019, said the co-governance worked well for natural resource management. When he was minister, he developed, alongside the Act leader and Local Government Minister at the time, Rodney Hide, a set of principles for future co-governance arrangements.
Finlayson wrote about it extensively in his recent book "He Kupu Taurangi" and said whichever co-governance model was used, "in all cases local authorities must retain decision-making rights over natural resource management."
He rejected criticism that the Hawke's Bay regional planning committee of equal numbers of councillors and local iwi was "race-based".
"The committee ... is not race-based; it is Treaty-based," he wrote. "This is not nit-picking; there is a difference. While iwi are able to nominate members, they are free to nominate whomever they like ... In addition the committee is still subject to the control of the full council."
Asked about whether he was concerned about the expansion of co-governance into other realms, such as the social sector, he said devolution was a good model.
"I just fundamentally as a conservative have a distance view that the Government can often cause more problems than its solves and that if provision of some of this stuff can be devolved to iwi and hapu, fine."
Act leader David Seymour is one of the most vocal critics not only of co-governance but of the concept of partnership, which was set out in the landmark Lands Case in the Court of Appeal in 1987 and which has guided every government since, and increasingly so.
Seymour went so far, recently, to say that Act would remove references to the Treaty of Waitangi from laws.
That is further than even New Zealand First went in 2005 when its bill to remove references to principles of the Treaty in law was defeated at its first reading – it was supported by National, Act and United Future.
Seymour argues that at its core, co-governance can only be meaningful if it allows disproportionate representation.
"If it is one person, one vote, then it is not really co-governance. It is just liberal democracy. The only way that co-governance can be meaningful is if you start to say that some people require a disproportionate say in the democratic process.
"A mundane example, although not for people in Canterbury perhaps, is E-Can having two Ngai Tahu representatives. If you are in the E-Can region, you get to vote for a councillor but if you are Ngai Tahu, you get to vote for one and perhaps help appoint one too."
The question was why some people should have a different political franchise from others, inconsistent with democracy and inconsistent with the values that had made New Zealand a very successful society.
"The treaty is the founding document but it very much depends on how you see it.
"If you are into literally reading it and taking Professor [Hugh] Kawharu's modern English translation of the Māori version - we have the same rights and duties and your taonga is safe - that is a pretty magnificent way to have a country. You know, everyone is equal and don't pinch each other's stuff," said Seymour.
"The difficulty I have, particularly over the last 35 years, increasingly they've said 'no that's not what it is; the Treaty is an agreement for two groups to partner and one group has to have an equal say regardless of the proportionality.'
"It's inconsistent with democracy if you interpret the Treaty that way."
He favours devolution and says Act's charter schools, also known as partnership schools, was an example of a by-Māori, for-Māori policy.
"You can have devolution and choice without needing co-governance," he said.
Seymour does not object to natural resources being returned to Māori but he sees no need for them to be in co-governance with the Crown when that occurs.
"If it is truly owned by a particular group of people, it should be given back to them."
The fact that the Treaty of Waitangi may affect the concept of majority decision-making has been recognised in the Cabinet Manual.
It says the Treaty "may indicate limits in our polity on majority decision-making".
"The law may sometimes accord a special recognition to Māori rights and interests ... In other circumstances, the model provided by the Treaty of Waitangi of two parties negotiating and agreeing with one another is appropriate. Policy and procedure in this area continues to evolve."
In the wake of the new emphasis on partnerships by the Government and the increasing trend of litigants to seek interpretation of Treaty rights from the courts, the Cabinet Office developed new advice for all ministers and policy-makers in a circular in 2019.
The Cabinet Office circular, in advising ministers and officials on how to approach the treaty, differentiates between "treatment" and "rights".
It says: "The Treaty may justify different treatment of Māori interests or involvement of Māori in an issue, but it does not confer greater rights on Māori than the Government owes to all New Zealanders."
It suggests various tests that decision-makers should put their proposals through to ensure they are consistent with the Treaty and to be mindful of possible litigation that could be taken in terms of Māori rights.
That did not imply a Māori veto right to Government decisions but was a means of testing whether Crown obligations conferred by the Treaty had been met.
Significantly, the circular suggests that policy-makers be cognisant of the Treaty at all times, no matter what their relevant law says.
"New Zealand courts have held that Māori rights might be recognised by the common law, without statutory expression, and a decision-maker may be required to weigh the Treaty rights/interest even where there is no Treaty reference in statute."
As partnerships have stepped up under the current Government, so too has advice on how to go about it.
Kelvin Davis' officials in Te Arawhiti have also come up with advice on the range of public sector engagements with Māori.
The options depend on whether Māori have minor interests, moderate, or significant.
The commensurate engagement includes simply informing the relevant Māori group, to partnering and co-designing a process with joint decision-making. The ultimate type of engagement, Davis' paper advises, is when Māori interests are central and other interests are limited. That is when "the Crown will implement the decision made by Māori."
National has had a patchy relationship with Māori since former leader Judith Collins made much of the He Puapua report.
Crown-Māori relationships spokesman Shane Reti, Collins' former deputy, says National is continuing to "rebuild relationships and trust with Māori".
He also said National acknowledges the Treaty as the founding document of New Zealand "and that this often embodies concepts of partnership".
"We think a useful discussion of partnership might also include what concepts of 'relationship' might look like."
Crown-Māori relationships could take a range of forms, each of which needed to be tested against outcomes that were unifying for New Zealanders and fit for purpose in a modern society.
"Co-governance may be at one end of that journey.
"But we are also interested in building trust through early exploratory mechanisms such as co-design and working with iwi and Māori-led community organisations to drive better outcomes for Māori."
Jackson acknowledges that when a lot of the action is happening between the Government and Māori, Pākehā could feel alienated and more could be done to take others along.
"This is a unique partnership and Māori, I suppose, get the extras in terms of Māori seats and management and governance because of their unique position as the Treaty partner, and of course, other races do not have that unique relationship.
"This is Māori standing on their own. It is nothing for New Zealanders to be scared of because if we can upgrade what is happening in te ao Māori, it will be better for all New Zealanders."
A brief history of the Treaty of Waitangi
1840 - Treaty signed.
1840s to 1975 - Ongoing complaints from Māori about breaches of the treaty.
1877 - Supreme Court declares treaty a "simple nullity".
1975 - Treaty of Waitangi Act establishes the Waitangi Tribunal to hear contemporary breaches.
1985 - Jurisdiction of tribunal extended back to 1840.
1987 - Court of Appeal in the Lands case declares the treaty a partnership with a right of redress for breaches, effectively giving it a modern framework.
1989 - Govt releases five principles for Crown action on the treaty for guidance on Treaty-related decisions.
1995 - Waikato-Tainui enters the first treaty settlement with the Crown - followed by about 75 other settlements to date.
2002 - Supreme Court established as the final appellate court and expressly to determine Treaty of Waitangi issues.
2008 – 2017 Treaty of Waitangi settlements pick up pace under Chris Finlayson with greater use of co-governance mechanisms for management of natural resources.
2018 - Cabinet makes closer partnerships with Māori a priority and issues guidance to public service on partnership principles and engagement options.
2019 - Cabinet office issues new guidance for public servants on treaty implications in decision-making.
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