Thursday 12 May 2022

Getting On With Co-Governance – Without Debate.

Who’s Missing From This Picture? The re-birth of the co-governance concept cannot be attributed to the institutions of Pakeha rule, at least, not in the sense that the massive constitutional revisions it entails have been presented to and endorsed by the House of Representatives, and then ratified by the citizens of New Zealand in a democratic referendum. It is, rather, the work of Cabinet Ministers and Judges; of New Zealand’s permanent executive; of the body that slowly emerged to replace the tutelary power and influence of the British state. The force that now calls itself “The Crown”.

CO-GOVERNANCE, and what it means for New Zealand, is predicted to feature prominently in next year’s general election. Passions are already running high on both sides of this issue. All the more reason, one would think, for this country’s public broadcasters to facilitate a reasoned debate between those holding opposing views. Alas, in 2022, the publicly-owned radio network, RNZ, appears to have either forgotten how to conduct reasoned debate, or repudiated the whole idea.

On the morning of Wednesday, 11 May 2022, RNZ Contract Producer Sharon Brettkelly began promoting her latest contribution to “The Detail” series of podcasts. Entitled “Co-Governance: Time To Get On With It?”, Brettkelly’s piece featured just two participants.

These were Chris Finlayson, former National Party Minister for Treaty Settlements, and Traci Houpapa, Chair of the Federation of Māori Authorities, both of whom were, indisputably, well-qualified to speak on the podcast’s subject. Unfortunately, they were also very strong supporters of co-governance. Brettkelly had not thought it necessary to balance her journalism by including the opinions of equally strong and well-qualified opponents of co-governance.

Now, there will be those who object immediately that “balanced reporting” does not require the arguments for and against any given proposition to be included in the same broadcast. For balance to be maintained, it is sufficient that the views of antagonists and protagonists are presented to the audience fairly, and with equal potential impact, within roughly the same timeframe. So long as Brettkelly, or some other RNZ Contract Producer, created a podcast featuring two well-qualified and forceful opponents of co-governance, all would be well.

Sadly, given the current ideological climate in which RNZ’s journalists are required to operate, the chances of such a podcast being made are extremely slim. To broadcast such a production would be considered a breach of RNZ’s obligations under te Tiriti o Waitangi. It would also very likely be denounced by at least some of RNZ employees as a threat to their own and other New Zealanders’ well-being.

After all, we have it on the authority of no less of an expert than Chris Finlayson himself, that only the “Sour Right” and other “losers” oppose co-governance. What possible benefit could there be in providing a publicly-owned platform from which the views of people who “don’t like tangata whenua” and who “dream of a world that never was and never could be”, are spewed forth?

As the title of Brettkelly’s podcast suggests, the question is not whether co-governance represents a fundamental and unmandated break with New Zealand’s constitutional norms; or even if it is a politically feasible objective; but whether or not it is time to just get on with the job. Or, to quote Finlayson, addressing those who might still be entertaining doubts: “Go with the flow”. Clearly, among the people Brettkelly and her ilk deem worthy of a RNZ platform, there is no debate about co-governance. Or, at least, no debate in which representatives of iwi, or the Crown, should allow themselves to become involved.

Listening to Brettkelly’s podcast, it becomes increasingly clear that “The Crown” is a player in the co-governance drama meriting much closer scrutiny.

Most of us, when we hear someone refer to The Crown, rather naively (it turns out) assume the term is being used to describe the Government – the body which we, as citizens of New Zealand, elect to manage the country on our behalf.

Wrong, wrong, wrong!

When iwi representatives and Cabinet ministers talk about The Crown they have something else in mind altogether. For these folk, The Crown represents the permanent and supreme executive power. It encompasses all the decisive institutions of the New Zealand state: the Executive Council (a.k.a the Cabinet); the senior echelons of the public service; the armed forces and the Police; the national security apparatus; and – most important of all – the Judiciary.

Why does this matter? Because the Treaty of Waitangi was presented to the representatives of the indigenous people of these islands by a representative of the British Crown. It was a take-it-or-leave-it deal, that was offered to Māori: not by the British people, who, in 1840, had bugger-all say in the treaties negotiated by their betters (and still don’t) but by agents of the British state. Māori took the deal precisely because, at that time, the British state was the most powerful executive authority on Earth.

What undermined the Treaty was the steady devolution of authority (kawanatanga) from the executive power back in London (and from its local representative, the Governor) to the representative institutions of the Pakeha settlers – whose numbers had grown from a couple of thousand to something equal to or greater than the indigenous population.

In the eyes of these settler governments, the Treaty was not an agreement in which they had played any part, and most certainly was not a document they had the slightest intention of honouring. In the early 1860s, they demanded from London – and got – the overwhelming military force they needed to bury the Treaty and, along with it, the very idea of co-governance.

The re-birth of the co-governance concept cannot be attributed to the institutions of Pakeha rule, at least, not in the sense that the massive constitutional revisions it entails have been presented to and endorsed by the House of Representatives, and then ratified by the citizens of New Zealand in a democratic referendum. It is, rather, the work of Cabinet Ministers and Judges; of New Zealand’s permanent executive; of the body that slowly emerged to replace the tutelary power and influence of the British state. The force that now calls itself “The Crown”.

This is what lies behind the tangata whenua’s fear of representative democracy or, as they prefer to call it, “the tyranny of the majority”, and their preference for working with The Crown alone. They understand perfectly what most Pakeha have yet to grasp: that representative democracy was the means of their dispossession. They know that New Zealand can have democracy, or it can have co-governance, but it can’t have both.

Fair enough. But how are the citizens of New Zealand to explain the scorn and disdain in which The Crown so clearly holds them? Is it simply because The Crown knows that the measures required to keep the peace between Māori and Pakeha will never receive the imprimatur of a freely and fairly elected New Zealand Parliament? That only under a constitutional arrangement in which iwi and The Crown between them wield sufficient power to over-rule the will of “The [Pakeha] People” can the instruments of peace be created?

Because iwi and The Crown both know that co-governance will never be forged by free and fair debate, or free and fair elections, but only by “getting on with it”.

This essay was originally posted on The Daily Blog of Thursday, 12 May 2022.


Unknown said...

Well said. Radio New Zealand has abandoned its responsibility to its listeners and readers a long time time agoIt may be coincidence that it only reports the government view on. race -0 and some other topics. But it is evidence that RNZ journalists, management and board has abandoned its responsibilities of its charter - which goes unpoiloced . Newsroom also receives 4800,000 from taxap[ayers for TRhe Detail

John Hurley said...

So much for "Detail"; so much for "Mediawatch"; so much for "Q&A"; so much for Aotearoa "History" Show.

Get a load of this submission to the Productivity Commission on immigration

Case study – the unexpected million

David George said...

When the Treaty was signed "The Crown" was indeed sovereign. "The force that now calls itself “The Crown” is really just an idea, a convenient name for the hierarchical layer placed above the people and their representatives. It is only technically sovereign, it's power is derived from, and dependant on the collective will of the people. To speak of the Crown "knowing" anything is a nonsense and the people are correct, not "wrong wrong wrong" in regarding themselves and, by extension, their elected representatives as the responsible sovereign. Whether that is the technical or constitutional reality is beside the point - that is the de facto understanding and, therefore, the actual reality. Push the point and just see who or what is really sovereign.

The co governance protagonists are not going to get away with hiding behind "The Crown".

We are clearly at an important crossroad, there's an idea (blues meme?) that you meet the devil at the crossroads. Sounds about right: At a Crossroad

Trev1 said...

It is one thing to set up a co-management structure for a geographical feature like a river or a mountain to which a particular tribe or tribes have a longstanding connection. Most people understand and are happy to go along with that. It is quite another to say a non-Maori vote is worth only half, or less, than a Maori vote as has been proposed under the Rotorua Representation Arrangements Bill, or the continuing 3 Waters saga. People in considerable numbers take great exception to such blatant discrimination and loss of democracy and accountability.

Your account of the machinations of the Crown sounds very much like role of the Deep State in America. There is an umbilical cord that connects key elements of the Crown to the great unwashed however in the shape of elected politicians. It is they who form the Cabinet and appoint the judges or vote funding for the armed forces. "Just getting on with it" is likely to provoke an unprecedented populist backlash which will impact the whole political structure. And when our present Queen passes the future of the Crown itself in New Zealand's unwritten constitution may also be vigorously debated. Co-governance where the rights of the majority are diminished or set aside is a dangerous mirage that may yet break this country.

The Barron said...

"They know that New Zealand can have democracy, or it can have co-governance, but it can’t have both."
I have always a problem with such grandiose statements.
The United States can have democracy, or the senate, but it can't have both.
Belgium can have democracy, or linguistic balance, but it can't have both.
Canada can have democracy, or 600 recognized First Nations governments, but it can't have both.
Britain can have democracy, or Scottish devolution, but it can't have both.

Indeed, the Tories have often asked the West Lothian question. This is where MPs from North Ireland, Wales and Scotland can vote on English law and issues. Democracy? It is difficult to see how English law will not impact the Home Countries. That is, of course, for Britain to accommodate within its view of nation and democratic institutions.

The history lesson given is a little misleading. Each hapu had its own reason for signing the Treaty few verified as being because of Britain's executive power. The role of the colony and Governor of NSW is missing. What is noticeably absent is analysis of what was, in good faith, ceded by Maori.

Did the dominant Maori cede interest in water? Did Maori cede interest in their descendant's health? Did individual Iwi or hapu cede things such as the Urewera? the Waikato river? the right for self-determination within a partnership?

I have posted on Customary Law before. This is a factor that goes back to Anglo-Saxon law, and still guides jurisprudence derived from the Westminster model. If you have ancestral control or ownership of something, you maintain the control or interest unless it has been specifically ceded.

While New Zealand has acted as if there is a government by conquest, that is not the legal basis for NZ law, which is based on contractional arrangements and inherited concepts of Westminster law. Customary rights and ownership remain unless relinquished. I don't know how this infringes upon any democratic concept as it is acknowledging, in part, that interests remain valid.

A secondary point is regarding need. Maori health has been disproportionately disadvantaged where the interests have not been given substance. The water has environmentally declined without the indigenous ontology part of management. Genuine ancestral interests and different cultural models can give perspective that can benefit both the indigenous and the inheritors of the settler society.

I am always uncertain about the opposition to co-governance models, it often seems to me the fear is that they will succeed and improve equity in society.

Mark Simpson said...

Thanks Chris. Once again, you have distilled what many of us feel but find difficult to succinctly express. There are forces surreptitiously undermining the very foundations of our constitution with spurious and ad hoc verbiage insinuating that co-governance is fait accompli. That our public broadcaster blatantly promotes this without due regard to balance and fairness serves to increasingly anger and frustrate many.
Any chance of submitting this to the NZ Herald? Everyone else seems to get published.

ChrisH said...

It is a liberal principle that minorities should be protected from a potentially confiscating democracy. Where minorities are thus protected, we have liberal democracy. The challenge is, however, how to navigate between a constitutional Scylla and a constitutional Charybdis. Scylla is, of course, plutocracy, protecting a minority called the one percent, more or less. Charybdis is what the German trade unionist Peter Glotz called the 'two thirds society' in which a democratic majority, in practice from one ethnic group, slashes social investment, gives itself tax cuts, and generally pulls up the drawbridge on a one-third minority, which is for its part nearly always younger on average and thus in a position to entertain visions of turning the tables by becoming more numerous. That way, you get Northern Ireland, where Sinn Fein has just become the largest party in the local assembly in ways that nobody could have dreamed of when the 'Troubles' began in 1969, or the present instabilities of the United States. It is, of course, entirely possible to get Scylla and Charybdis at the same time.

Anonymous said...

I have a feeling that you overestimate the audience that the RNZ now commands. Tens of thousands have voted with their feet and switched off, they know exactly the position that RNZ will take on any given topic. The RNZ no longer reflects the opinions of ordinary people, only the self appointed elite. Outside of the Wellington hothouse, ordinary Kiwis couldn’t give a hoot what Brettkelly, Finlayson and Houpapa think.
They are preaching to the converted. Democracy may not be perfect, or fashionable in some Wellington circles, but it’s the best thing we’ve got until something better comes along. Co-governance is not it.

Guerilla Surgeon said...

"I am always uncertain about the opposition to co-governance models, it often seems to me the fear is that they will succeed and improve equity in society."

Apparently it is "racism" or even worse, "reverse racism". I'm not quite sure what drives opposition either, except obviously it's fear. Or perhaps in some cases greed. But certainly there is a visceral fear of the poorest sort in general, and Maori in particular getting anything from the government. Because apparently it's "free stuff" and that's all these people want in order to be able to live without working like the rest of us. An attitude I might say that has been prevalent in English society since at least the 1500s.(Thank you Michael Graves)

David George said...

The Barron: "I am always uncertain about the opposition to co-governance models"

Perhaps, therefore, you could try listening to people that have concerns about it. There will be many reasons, I'm sure, maybe some have the motivations you describe but I suspect you're just trying to cast opponents as morally reprehensible and therefore beyond consideration. I could be wrong but if you are genuinely interested in finding out here is a very good essay that lays the concerns of many, mine included.

larry mitchell said...

Chris you cavil at the lack of democratic process concerning Co G. The all-powerful "Crown" de jour is a creature that changes its principles according to the guiding beliefs of the Government and Judiciary ... of the day.

Now "that"! to my mind is the key to the discontent people like us have with the idea of Co G.

And ... under this useless incompetent socialist government acting as "The Crown" their decisions have been tainted ... even dominated by "their" view of the world.

One could expect the comparable decisions under National would look significantly "different". And their enforcement process would ... one hopes; not include the use of a bulldozer ... a la Labour.

The Nats to date have not been explicit on the matter however.

Anonymous said...

"I am always uncertain about the opposition to co-governance models, it often seems to me the fear is that they will succeed and improve equity in society."

What on earth are you on about. Why would you possibly jump to this?

Apply Occam's Razor please.

What's the most likely explanation? That a bunch of well-off people don't want others to be well off?

That seems petty and narrow.

And wouldn't explain the less well-off opposition to co-governance coming (at least on three waters) from rural, often lower-socioeconomic backgrounds.

Wouldn't a more likely and more broadly applicable explanation be that people don't like the foundational principle of one person, one vote that underpins an egalitarian democracy with universial suffrage being messed with?

The Barron said...

I think if you want substance behind my comment that some co-governance opponents are afraid new models may work you just have to examine the National Party reaction. The once esteemed Dr Shane Reti is visibly uncomfortable as he has to defend National's opposition to an autonomous Maori health approach and their view of a 'department within', which is the model that has overseen poor Maori health outcomes. During the push for Covid19 vaccination, Dr Reti watched Maori communities and leaders turn around the lack of priority of the Ministry and helped lead in his rohe. Now he has to justify the National Party policy on the basis of unstrained claims of increased bureaucracy. Luxon avoids the subject of actual health outcomes from the devolution.

sumsuch said...

Understand your wish to post elsewhere, corresponds to my wish to respond elsewhere. But Martyn is light Joe Rogan often. He's losing his way in the long journey and then so the tectonic changes the people rely on. We are again in the 30s but 1000 times worse. And there is no engine to us -- just a drowsy, pleasant drop-off -- for our generation.

sumsuch said...

That Martyn couldn't respond appropriately to the soldier who died for democracy in Ukraine -- the exact correspondence to our fathers in WW ll -- is a bad sign, but then most of his eighty-four comments didn't understand it as well.

You know now the fascists got a minimal number of votes in the last Ukraine election. It is dismaying to me I have to put the speech-marks around my last 'Left' blog site.

C'est difficile to keep up the force for democracy -- not me, but most of the talkers veer off into right-wing cul-de-sacs. That Sanders is the only Rooseveltian, the only grand man of the Left says it all about how few are prepared to pay for the truth.