Treaty settlements, environmental management and the insidious march from co-management to co-governance

We can’t be sure, here at Point of Order, about when “co-governance” was first introduced to this country’s political vocabulary.  For some time before ministers were talking about co-governance, they had been talking about co-management.

There’s a difference. A big difference, when it comes to constitutional arrangements within public authorities.

According to one distinction we uncovered, “governance” is the strategic task of setting the organisation’s goals, direction, limitations and accountability frameworks. “Management” is the allocation of resources and overseeing the day-to-day operations of the organisation.

The first mention of co-governance we could find on the Beehive website – which records all ministerial statements and speeches and statements since 1993 – was made by John Luxton in May 1997.  As Associate Minister of International Trade, addressing guests at a meat industry function, he talked about the meat industry’s movement into the next millennium.

He said the development of co-governance principles under CER were among the government priorities he mentioned.

Obviously that had nothing to do with the Treaty of Waitangi, although someone is bound to pop up and insist everything that happens in this country is Treaty-related.

The first mention of co-governance in the context of Crown-iwi relations was made by Christopher Finlayson, Minister of Treaty of Waitangi Settlements, in 2009, according to our search of the Beehive website.  He also shifted the parameters of Treaty-related expectations. 

Delivering the Te Apirana Ngata Memorial Lecture in July 2009, and bringing Treaty settlements into considerations, he said:

“We’re in the era of co-management or co-governance. That’s a long way away from where we were in the mid-1980s, when Lord Cooke hadn’t even given his judgment in the Maori Council case which called for consultation with iwi by the Crown.

“That’s why a long-term view of the relationship needs to be taken. We are on the right path. All may not be achieved immediately. It may take five to ten years. It may take twenty years.”

Before that, our search suggests, ministers had been talking about and Maori tribes were agreeing to co-management arrangements.

In 1998, Ngāi Tahu signed a Deed of Settlement which provided compensation of $170 million.  The deal confirmed Ngāi Tahu’s ownership of pounamu, granted certain rights to sites of significance and allowed the tribe a role in managing conservation estate resources within their boundaries.

Doug Graham, Minister of Treaty of Waitangi Negotiations at the time, referred to the tribe’s role in a press statement:

“The Minister and Te Runanga agree that the Land will be managed in accordance with a  programme to be agreed between the parties based on the current co-management regime which provides for the participation of the Moturata/Taieri Whanau.”

“Co-management” was the word used by Marian Hobbs, Minister for the Environment, in May 2000 when she addressed the New Zealand Institute Of Surveyors.

Environmental management legislation provided for iwi and hapu to have a role in natural and physical resource management, she pointed out.  But they wanted more…

“Frustrated with the way that this had been working in practice and the opportunities for influencing decision makers, tangata whenua were applying pressure through the courts, the Waitangi Tribunal and the Treaty of Waitangi claims settlement process to promote their interests. This was having an effect on local government processes, particularly consultation on resource consent applications.

“Work in the past had been focussed on removing barriers and promoting greater opportunities for practical involvement by Maori tribes in decision making.”

Hobbs supported continued investment in the development of iwi management plans to help iwi and councils incorporate Māori environmental values into Resource Management Act processes.

“Ongoing and future projects relate to exploring opportunities for co-management between iwi and councils; and looking at ways of including Maori knowledge across all work programmes.

David Benson-Pope, Minister for the Environment in September 2004, similarly was using “co-management” in his speeches about the Resource Management Act and government plans to improve it.

“We propose to clarify the requirements for central government to consult iwi during the development of national policy statements and national environmental standards. There will also be explicit provisions empowering the co-management of resources between councils and Maori.”

Two years later, in June 2006, Nanaia Mahua was Minister for the Environment.

In a speech to open a conference “on restoring the mauri of Lower Waikato Lakes”, she mentioned the 2002 Wetlands Accord for the lower Waikato Lakes which had brought together Environment Waikato, the Waipa District Council, Fish and Game, Department of Conservation, hapu and iwi.

“I am particularly mindful (and so is the Government) that different approaches are needed for different regions. Insofar as Maaori interests are concerned, I am also mindful that co-management solutions via joint management plans are increasingly being sought. Society at large should not fear such an approach but embrace an opportunity to integrate two distinct approaches that will result in a unique “New Zealand model” for sustainable resource management.”

There are plenty of other ministerial references to co-management through to 2009  – when co-governance kicked in – and in ministerial statements since then.

Christopher Finlayson gave co-governance its big nudge.  A few months after referring to our being in “the era of co-management or co-governance”, the Crown and Ngāti Whare signed a Deed of Settlement for the tribe’s historical Treaty of Waitangi claims.

Announcing this, Finlayson said Ngāti Whare had achieved

“… a unique co-governance agreement which focuses on the Whirinaki Forest Park, bringing ecological and economic benefits to both iwi and all New Zealanders who will continue to enjoy this exceptional part of the country.”

In December 2009, Finlayson announced the Crown and Waikato-Tainui had signed a revised deed of settlement in relation to their historical Treaty claims over the Waikato River.

The initiative to make these changes – it seems – was taken by the Key government.

“Earlier this year we approached Waikato-Tainui about seeking more effective and economically efficient arrangements for delivering the overarching purpose of their 2008 settlement, which is to restore and protect the Waikato River environment,” Mr Finlayson said.

Finlayson’s statement went on to state:

“The Crown and Waikato-Tainui signed a deed of settlement in August 2008, providing a $210 million clean-up fund and co-governance over the river environment. The revised deed streamlines the co-governance arrangement and retains the clean-up fund.

“The revised deed establishes a single co-governance entity, the Waikato River Authority. (The previous arrangement provided for six statutory boards.) The Authority will be made up of equal numbers of Crown and iwi appointed members, including other iwi with interests along the river. It will be responsible for monitoring the implementation of a direction setting document, the Vision and Strategy, Te Ture Whaimana.”

But this looks like a rewriting of history as well as a revision of the deed of settlement.  Co-management suddenly had become co-governance.

Michael Cullen had been Minister in charge of Treaty Negotiations in August 2008.

And in his speech at the signing of the deed of settlement, he said:

“This Deed of Settlement acknowledges your relationship with the Waikato River, and begins a new era of co-management of the river and its catchment – the highest level of co-management achieved anywhere in New Zealand.”

Did he get it wrong?

A few weeks later, speaking in Parliament to move that the Waikato Tainui Raupatu Claims (Waikato River) Settlement Bill be read a first time, he said

“This legislation focuses on those relationships to establish an innovative co-management regime for the Waikato River.”

Finlayson mentioned “co-governance” and agreed to its incorporation in a  raft of statements and settlements during his years in the treaty settlement portfolio.

And now the Ardern government is determined to extend the co-governance concept, most controversially in the Three Waters reform programme.

Significantly, ACT leader Rodney Hide sounded a warning while Finlayson was in full cry.

As Minister of Local Government in 2011, Hide told Local Government New Zealand:

“Time and time again principles of good governance are sacrificed for the particular policy objectives being pursued by Ministers and central government agencies

“Let me give you a controversial example. 

“The Government naturally and rightly wants to settle historical Treaty grievances.  In these cash-strapped times it’s getting harder. And the claims are getting tougher.

“So now local governance is up for grabs as part of the settlement process.  Treaty negotiators have been discussing co-governance and seats at the council table in lieu of cash and property. Their purpose is not good local government but treaty settlements.

“Of course, if the objective is a Treaty Settlement, then it’s unlikely good local governance will be the result.  These are two different objectives.  The drive for a Treaty settlement is quite different to a drive for sound local governance.”

Hide reiterated this in November 2011 in a speech to the New Zealand Society of Local Government Managers Annual Conference:

“The Government naturally and rightly wants to settle historical Treaty grievances.  However, Treaty negotiators are now discussing co-governance and seats at the council table in lieu of cash and property. 

 The purpose is not good local government but Treaty settlements. 

The local government sector and I have found ourselves always on the wrong side of the Treaty settlement process, not because we were against the settlements as such, but because we were looking for good local governance.

And, of course, in the past local government and local communities weren’t involved in the process until the deal was done, because rightly, Treaty settlements are the responsibility of central government, not local government.

Hide said he thought the big challenge for local government would be establishing its proper place in the constitution of New Zealand.

“To me it’s very clear.  Local government is our second tier of government, properly constituted and democratically elected.  But successive governments have not always treated it as such.”

The Ardern government is demonstrating that Hide summed things up with dismaying prescience.

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