Jacinda Ardern: "Co-governance - I feel like it's becoming an increasingly politicised term." Photo / Mark Mitchell
OPINION:
Co-governance has been in the water in Parliament for the past month, in large part thanks to two events: Act's announcement it would like to hold a referendum on the principles of the Treaty of Waitangi, and, more recently, the death of Dr Moana Jackson, a public intellectual who has shaped how many in public life understand the Treaty.
One group less keen to talk about co-governance is the Government.
Prime Minister Jacinda Ardern demurred when asked about co-governance proposals relating to Willie Jackson's forthcoming Cabinet paper on honouring the United Nations Declaration on the Rights of Indigenous People in her Monday press conference.
"Co-governance — I feel like it's becoming an increasingly politicised term," Ardern said.
But co-governance is firmly on the political agenda, in the form of Three Waters, RMA reform, UNDRIP, and the Māori Health Authority (which looks more like devolution than co-governance, but that distinction appears to have been lost).
The issue is one on which Act and National are furthest apart. Act wants a referendum which would settle and codify the principles of the Treaty. This would, in practice, limit the Treaty's application to parts of public life and end the push to greater co-governance.
National supports limited co-governance insofar as it relates to historic Treaty settlements, many of which National agreed the last time it was in Government. It is less keen on invoking the Treaty in the delivery of public services - a nod to its opposition to co-governance in the area of Three Waters.
Both allege the Government has been less than upfront in its co-governance ambitions.
They're not wrong on the final point.
The Government has lacked candour when it comes to explaining its broader ambitions for co-governance. Ministers tend to focus on why non-Māori have nothing to fear, rather than why a co-governance model is necessary.
Three Waters reforms are the most egregious example of this.
The contorted governance structures of the four new entities appear to have been designed for the sole purpose of enabling co-governance. Boards are three steps removed from the councils that officially own the entities (councils and mana whenua will appoint representatives, who will appoint a selection panel, who will appoint the board).
When asked why mana whenua have what amounts to 50 per cent of a say over who is appointed to entity boards, Local Government Minister Nanaia Mahuta tends to say that this is because mana whenua take a long-term view when it comes to asset management, and that they will help manage the assets well.
That's correct. There's decades (and, arguably, centuries) of evidence showing iwi manage assets well and in the long-term interest.
But of course, there are many groups of people who are capable of managing assets well, not just Māori. Literally speaking, this argument only justifies not excluding Māori from Three Waters governance. It does not speak to why the entities are designed to create effective Māori co-governance.
The fact the Government, and Mahuta in particular, often don't give the real answer to the co-governance question, that it is to honour the Crown's commitments under the Treaty, suggests they are not confident they could win that argument. Politicians well know it is unwise to pick a fight you are not confident of winning.
We seem to be at something of an inflection point in the terms of our relationship with the Treaty. This is perhaps down to politics slowly grappling with what the Treaty's place will be once the focus shifts from settling historic claims (the irony here is the power to inquire into contemporary breaches of the Treaty through the Waitangi Tribunal is actually older than the ability to look at historic cases). Moana Jackson himself once said treaties are not meant to be "settled", so much as they are "honoured".
It is understandable this has confounded politics. Act's call for a referendum on what the principles of the Treaty actually mean in contemporary New Zealand makes sense in a certain light.
The Treaty is a constitutional document, whose interpretation has evolved rapidly to no small amount of chagrin. It occupies an essential, but awkward place in our lives. This too is understandable. There aren't many documents that have gone from being "a nullity", in the words of one jurist, to constitutional in the space of a century.
There is an argument to be made for going back to the electorate and seeking a mandate for a renewed and clarified definition of what such a document means.
But that argument is undermined by two key details: first, that before the Treaty was recognised indisputably as part of our constitution, it was an agreement between two peoples - an agreement which would almost certainly be undermined were it to be put to a referendum; and second, because the agreement protects the interests of a minority against those of the majority - referendums pitting majority against majority are rightly frowned upon.
For those reasons, any attempt to use a democratic mechanism to curtail the minority interest of Māori would be likely to lead to significant and justified grievance, which is probably not worth whatever ephemeral gains there would be by stopping the politico-judicial evolution of the Treaty that's taken place over the past half century.
But junking the referendum idea does little to answer how politics reckons with how the Treaty should be honoured now. Parliament's Environment Committee recently grappled with this while looking at the bill that will replace the Resource Management Act.
Submitters want the Government to codify Treaty principles in relation to the new RMA in the legislation itself to give people greater clarity over how the Treaty pertains to resources. The committee, however, was concerned this would see the legislation become "out of date" as Treaty jurisprudence evolved.
New Zealand is not the country it was two decades ago, when Treaty issues opened cultural fissures and defined the 2005 election campaign. Some polling suggests most voters don't actually understand the Three Waters reforms, and those who claim to, support them.
But Labour does face a challenge over the next year rolling out expanded co-governance over Three Waters and resource management. That challenge is that the obligations in honouring the Treaty could diverge strongly from what it is able to find a democratic mandate to do.
Winston Peters, Kendall Langston, Chris Brandolino, Duncan Humm, and Jason Walls.