The (new) Prime Minister said nobody understands what co-governance means, later modified to that there were so many varying interpretations that there was no common understanding.

Co-governance cannot be derived from the UN Declaration on the Rights of Indigenous Peoples. It does not use the word. It refers to ‘government’ on only three occasions.

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. (Article 4)

The organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration ... (Article 41)

The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith. (Article 46)      

The spirit of the declaration is in Articles 4's reference to self-government. Aotearoa New Zealand has progressed this in recent decades including giving Iwi a sounder financial basis and establishing institutions like Kohanga Reo, Māori broadcasting and the Māori Language Commission.

The notion of co-governance was introduced into the New Zealand dialogue by the 2020 report He Puapua, written by a Technical Working Group on a plan for the UN Declaration, established by Cabinet reporting through Te Puni Kōkiri (the minister was Nania Mahuta). The group was, of course, independent but a different membership could have come to quite different recommendations. (Suppose Winston Peters had been on it).

He Puapua does not actually define ‘co-governance’, but it recommends ‘the establishment of a high-level co-governance body comprised of equal numbers of government ministers and Māori representatives.’ There are numerous other references to the notion which underline the ambition of the report. It suggests consideration should be given to the creation of an ‘upper house in Parliament that could scrutinise legislation for compliance with te Tiriti and/or the Declaration. Various models for the composition of such a body could include a partnership model (with 50/50 rangatiratanga and kāwanatanga representation).’ The report’s conclusions were not adopted by the cabinet.

The reference to ‘rangatiratanga and kāwanatanga representation’ means that the report observes the division in the Tiriti o Waitangi expressed in the first and second articles, which distinguish between the two roles. He Puapua wants to merge them.

In my judgement, the UN Declaration is very much in the spirit of te Tiriti, emphasising the notion of rangatiratanga, although it does not use the word. It mentions self-government (which may be the opposite of co-governance) and repeatedly refers to the rights the indigenous have to their lands or territories and other resources – that includes, of course, the right to alienate them.

However, there is a problem about te Tiriti which is rarely confronted. When it gave responsibility for kāwanatanga to the Crown, neither Hobson and his English associates nor the Rangatira who signed the document envisaged the extensive government that would evolve. New Zealand adopted a centralisation strategy in 1876 when the provinces were abolished and local government dis-empowered. (No consideration was given to the impact on Māori local self-government.) Subsequently the centralised state extended its powers. It has been doing so ever since. The last big attempt to reduce the scope of the state was under Rogernomics, but that was more about strengthening the power of business rather than of individuals and localities. (In a number of areas – where there was government funding – the state strengthened central control.)

I would not help to try to guess what Hobson and the signing Rangatira might have thought of the current state. Hobson’s instructions from the British Government envisaged a minimalist state (as Britain was then, compared to today), while the Rangatira were already living in a minimalist one.

So what are we to do about interpreting te Tiriti in the light of today’s state? He Puapua seems to want to merge the kāwanatanga and rangatiratanga provisions of articles one and two. I suppose that is a solution to dealing with the centralisation. I prefer to retain the integrity of te Tiriti.

I have argued that te Tiriti is in the form of a social contract. (Here and here.) That maintains the separation of the two articles, but accepting this as an underlying principle would require us to ease back on the centralisation of the state. That would not be popular. Even our most right-wing parties, faced with a problem, support centralisation, just like the rest of us. Like all of us, they advocate less government in the areas where they have a particular interest. But this is not a political philosophy, it is using the state to pursue self-interest.

So we are likely to continue to muddle through. Even so, we are going to have to think with much more precision.

Take the question of the governance of water. We have successful co-governance arrangements for the Waikato River (and some other natural resources). In my view they are justified by the fact that English law and Māori practice had different property rights in regard to rivers. For the former, the owner of the bank owned to the middle of the stream. Māori involved much more complicated arrangements. I suppose a case could have gone to the courts, which would have eventually led to some direction which, as in the case of the foreshore and seabed, would have remained ambiguous and required legislation (after much political upheaval). Instead, common sense led to the partnership of the current co-governance arrangements.

The Three Waters proposal is quite different from arrangements involving natural resources. It proposes four entities with, eventually, around $200 billion of assets with their governance shared between Crown and Iwi. How does it relates to assets to which they have contributed no funding. The justification that Māori have an interest in the assets through the rangatiratanga provisions of te Tiriti is not compelling. I am relaxed about the proposition that Māori have such a substantial interest in water via article two of te Tiriti that they should be involved in the issuing of water consents – and may well be entitled to a payment for the water taken – but that is not the same thing as involvement of billions of assets.*

As I write, the government seems likely to back down over co-governance of the Three Waters. (Personally, I think it should back down over the whole centralisation proposal and locate the governance and management at a more appropriate local level.) But that will not resolve the central problem. Kicking co-governance down the road until after the election leaves it as a political hot topic. Many will assume that the government – if reelected – will implement their worst fears after the election. Dog whistling will drown out sensible discussion. Muddling through about co-governance in its widest form is not a viable political option even if is the only option on the table.

* It is proposed the substantial borrowing for the three waters management assets will be secured against ratepayers. Does not co-governance mean half the borrowing should be secured against iwi assets?