As we head towards the 2023 General Election, one topic that is set to dominate debates and the airwaves alike is co-governance. A term of many layers and of real potency, co-governance is often as misunderstood as it is used to drive agendas across the political spectrum.
On the surface, co-governance refers to a shared governance arrangement, with Treaty of Waitangi – Te Tiriti o Waitangi partners having equal seats around the table. Often mistakenly believed to be about the ownership of assets, it in fact refers to partnership in their governance. It is not a new topic, with iwi and Crown entities managing many rivers, lakes and forests together under co-governance arrangements for a number of years.
It has acquired new relevance through recent debates sparked by proposals for Māori wards in local councils, the creation of the Māori Health Authority, Te Aka Whai Ora, demands for a referendum, and of course as a key pillar of proposed plans for Three Waters Reform.
It is not surprising therefore that the stage is set for co-governance to be a political issue that will electrify debate ahead of next year’s election. As the ions charge, MEttle spoke to noted director, Chair of Te Whatu Ora Health New Zealand, and advocate for equitable and responsible practices in business, Rob Campbell CNZM, and former Attorney-General and Minister for Treaty of Waitangi Negotiations, Chris Finlayson KC, to gain their understanding, views and insights into this often-thorny topic.
What does co-governance mean?
For Chris Finlayson, 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’. The US Ambassador recently asked me if co-governance is similar to joint management arrangements. It is. I said it is not an opportunity to micromanage the officials work, but a chance to set priorities and to have a say in how to manage a resource.”
To this Rob Campbell adds, “To me, co-governance simply means sharing responsibility for governance. It could apply to any form of that sharing where there are separate interests. For example, in a joint venture one would expect to find co-governance, and you would in a partnership.
“The concept currently being debated in this country is typically framed as sharing responsibility between Māori and Pakeha. The most common arrangements attracting this terminology are between the Crown and some tangata whenua structure, often one created by the Crown for the purpose, to partially accommodate obligations under Te Tiriti o Waitangi."
Are there limits to co-governance and what it should apply to?
“In a multi-cultural world, not sharing governance makes no sense,” says Campbell.
“I think it should apply anywhere there is agreed to be shared ownership between any parties involved. What is ‘ownership’ is the key question. Our culture and law have tended to see ownership as being based on the legal fiction that a particular economic interest assigns preferential rights to controlling an asset. That has been a powerful force in European economic development for some centuries, but it is hardly an eternal or all-cultural truth.
“If one takes a broader view of ownership to include traditional, or other economic relationships, then co-governance is almost inevitable and desirable.”
That being said, Finlayson says that co-governance cannot apply to all areas of government.
“Obvious examples of where co-governance would be hard to apply are national security and foreign affairs. It is also important to distinguish between co-governance and initiatives developed by this Government to deal with an issue, such as the Māori Health Authority, which I don’t regard as co-governance. The Māori Health Authority is an example of a government initiative to address health needs in the community. Whether it is a good idea is for the politicians to debate.”
Campbell doesn’t see the relationship the same way.
“Neither Te Whatu Ora nor Te Aka Whai Ora ‘own’ the health services system funded by the Crown in a meaningful sense. For example, our ability to sell any substantive part without Crown approval is very, and rightly, limited. The Crown health services system, which is half directly delivered and half funding of others, privately or community-owned, has simply been structured by the Crown into two governance entities with openly prescribed roles.
“Te Whatu Ora is the primary delivery and funding organisation. Te Aka Whai Ora has much smaller roles in both respects recognising in a very limited fashion that ‘by Māori for Māori’ practice has demonstrated superior outcomes for Māori and is likely to play a key role in eliminating the inequities they have experienced to date.”
Campbell says that Te Aka Whai Ora also has a role in monitoring how Te Whatu Ora performs on equity of outcomes for Māori.
“They have one representative on our board to facilitate this. The two organisations have chosen to work closely together by sharing some other parts of each other’s work because we think that is a better governance practice but neither has more than a consultative involvement with the other as of right. I am puzzled that some see this as co-governance rather than pragmatism.”
Is co-governance today a re-interpretation of what was meant and signed at the time of the treaty?
Finlayson says that when you look back to the signing of the Treaty 182 years ago, part of the agreement was that the Crown would look after taonga.
“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.”
Getting a clear definition of co-governance is very important. People say co-governance should really be ‘co-management’.
I sense some people have an automatic adverse reaction to it. Maybe because they don't know what it means, and they think they are giving something up that they shouldn't.
He then adds that people may be automatically against co-governance because they’re fearful of it.
“There are certain people in the country who always assume the worst: I describe them as The Sour Right, a term a former British Foreign Secretary, Douglas Hurd, used to describe people whose basic world view is negative.
“Take for example Tūhoe settling with the Crown. For an initial period, there was going to be co-governance; after five years the new board would have a Tūhoe majority. Some people then immediately (and inevitably) said Tūhoe were going to block public access. That is unfair and incorrect.”
So, do our interviewees think there is anything to fear in co-governance? And do we live in a climate in which people are frightened of speaking out for fear of being labelled racist or ignorant?
Campbell says there is some fear.
“That’s my sense. I sense some people have an automatic adverse reaction to it. Maybe because they don’t know what it means, and they think they are giving up something that they shouldn’t.”
To a limited extent Finlayson agrees, but for different reasons.
“There is fear, but because we have created an unhealthy climate that has stifled the opportunity for sensible and robust debate, which is healthy in a society. There is a tendency in this country for a group mentality. For instance, very few people questioned the lockdown. That is the fear that people have: keep your head below the parapet instead of engaging in civil and intelligent debate.
“I have high regard for the leader of the Act Party. David Seymour is perfectly within his rights to question the extension of co-governance without being labelled racist. It is contrary to free speech and contrary to the role of the Opposition which should be asking questions, and I find it highly offensive.”
So, what do we need to think about when it comes to co-governance?
“Avoid labels,” says Finlayson. “And, secondly, try and look at the substance of what is happening and understand it. I think the quality of discussion is very shallow. It is important that people be allowed to question applications or extensions of co-governance principles to other areas, and they have to be able to do that without being labelled racist or ignorant.
“In my opinion it makes sense to work with people who have lived alongside, for example, a river for hundreds of years; they can provide expertise and knowledge to manage it for better outcomes for all New Zealanders – practically that is a sensible thing to do.”