The heated (and often confused) debate about “co-governance” in Aotearoa New Zealand inevitably leads back to its source, Te Tiriti o Waitangi. But, as its long-contested meanings demonstrate, very little in the Treaty of Waitangi is straightforward.

Two versions of the 1840 document were written, one in English and one in te reo Māori.

About 540 Māori, including 13 women, had put their names or moko to the document. All but 39 signed the Māori text.

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But the differences in the translations were so significant that there has been debate ever since about what much of this agreement actually meant, especially Articles 1 and 2.

Article 3, on the other hand, attracts less controversy — which is interesting, because it was and is critical to debates such as the one swirling around co-governance. In effect, Article 3 acted as a mechanism by which the fundamental rights and privileges of British citizenship would be afforded Māori.

The promise of these rights and privileges, coupled with Articles 1 and 2, conferred a fundamental commitment of a partnership, in which the two sides could be expected to act reasonably, honourably and in good faith towards each other.

Although there were many British laws, practices and principles in existence by this time, four particularly stand out.

Participation
The ideal was that laws reflected the community (or a portion of it at least) and were made with the participation and consent of citizens. This was a long-standing principle, in that law and governance could not be something arbitrary or controlled absolutely by one person.

There had been efforts to control royal abuses of power since the Magna Carta in 1215 and the establishment of a “common council of the kingdom”, by which high-ranking community leaders could be summoned to discuss important matters.

Later, the 1688 Bill of Rights required free and frequent parliaments which would contain the right of free speech within them (parliamentary privilege in today’s terms). This meant representatives could speak without fear. Monarchs could no longer suspend laws on a whim, levy taxes at their pleasure, or maintain a standing army during peacetime without the permission of Parliament.

The anomaly that only about 5 percent of British citizens (wealthy and entitled men) could actually vote for members of Parliament was not resolved until legal reform in the early 1830s. This began the expansion of the political franchise and the widening of control over Parliament.

Individual rights
All were deemed equal in the eyes of the law, and the delivery of justice with integrity could be expected. Clause 39 of the Magna Carta stated:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

Clause 40 added: “To no one will we sell, to no one deny or delay right or justice.” The Habeas Corpus Act of 1679 required a court to examine the lawfulness of a prisoner’s detention, thus preventing unlawful or arbitrary imprisonment.

The Bill of Rights prohibited excessive penalties, cruel and unusual punishment, and the imposition of fines or penalties before convictions. It also guaranteed the right for all citizens to petition, where they could complain or seek help from the authorities, without fear of punishment.

Tolerance and a free press
After the Reformation, religious tolerance among British subjects took centuries to develop. The 1701 Toleration Act allowed some tolerance of the public practising of different religions, although the monarch could never be Catholic. But it was not until 1829 that Catholics — and some other faiths — could even be elected to Parliament in Britain.

The importance of tolerance can be seen in the oral promise made by Governor William Hobson at the time of the signing the Treaty: all established religious faiths would be tolerated in New Zealand, “and also Māori custom shall be alike protected by him”.

Although an oral commitment, to many signatories it was just as binding as the written words.

Public debate and the role of a free press was another important privilege. Although British laws governing libel, blasphemy and sedition were continued after 1688, there was a clear trend toward expanding liberty, allowing both booksellers and newspapers to proliferate.

This helped build the modern belief in the Fourth Estate, and that the media would act as a positive influence on decision makers.

Forward together
Despite the fine sounding language of Article 3 and all the expectations that went with it, the reality was that for many decades after 1840, the promised rights and privileges did not arrive for everyone.

The governor, followed by the early stages of representative government, ruled with a near absolute power that crushed dissent. The law itself was often used to target the rights and privileges of Māori, with some of the darkest examples occurring during and after the New Zealand Wars/Ngā Pakanga o Aotearoa.

Equality for most was largely a chimera, tolerance was elusive, and the press did not act as a brake on atrocious decision making.

Thankfully, the world is different today. Positive change has happened through successive generations of Māori defending the rights guaranteed in 1840, the Waitangi Tribunal, and the critical questioning of early and contemporary government policies by Māori, politicians, community leaders, media and scholars.

There have been official apologies, compensation and redress, although only a portion of what was alienated has been returned.

As we move forward and look for new ways to work together to achieve equal and equitable partnership based on Te Tiriti o Waitangi, it is important to remember the relevance of Article 3 and what it continues to offer in a modern context.

Dr Alexander Gillespie, professor of law, University of Waikato; Dr Claire Breen, professor of law, University of Waikato, and Valmaine Toki, professor of law, University of Waikato. This article is republished from The Conversation under a Creative Commons licence. Read the original article.

Iwi leaders in Aotearoa New Zealand have accused opposition parties National and ACT of “fanning the flames of racism”, urging the prime minister to be brave and not walk away from partnership on Three Waters.

With Waitangi events and festivities gearing up for the holiday weekend, Prime Minister Chris Hipkins attended the Iwi Chairs Forum yesterday.

He emerged from the closed-doors meeting saying they had asked the government to continue to work with Māori “to advance the issues that we’ve been working on previously”.

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Iwi leaders had also, it seemed, laid down a wero [challenge].

“I have also heard their concern that they don’t want to see ethnicity, race, being used as a way of dividing New Zealanders and I was able to absolutely reiterate my government’s commitment to ensuring that we continue to work together to avoid that happening,” Hipkins said.

“Where there is uncertainty, where there is a lack of clarity, that can lead to fear. Politicians who use that fear or exploit that fear in order to try and gain political advantage need to really reflect on their own actions. That’s something my government will never do.”

He was not afraid to get into specifics, either.

“They don’t want the concept of co-governance to be used to stoke fear, and nor do we,” he said.

“I think it’s been misunderstood and those who seek to use misunderstanding around it for political advantage need to reflect on their own behaviour.

“People can form their own judgments about that but I certainly think the opposition — National and ACT have, as they’ve done in the past — they’ve used uncertainty to try and stoke fear.”

The devastating flooding in Auckland this week may have changed some minds about the need for change in management of drinking, waste and stormwater — something Hipkins will be looking to capitalise on.

“I think that we have to accept that as a result of climate change we’re going to see more extreme weather events, and stormwater — which is an integral part of the Three Waters system — is going to continue to come under more pressure,” he said.

The iwi leaders were not shy about it either, with Tukoroirangi Morgan telling reporters they wanted co-governance or a similar partnership retained in the Three Waters legislation.

“The challenge we’ve put to the prime minister today is will he succumb to the attack dogs of the National party and ACT as they fan the flames of racism and anti-Māori sentiments, and throw us under the bus for the sake of keeping alive Three Waters?”

Morgan, it must be noted, has been appointed chair of the entity set to oversee Auckland and Northland’s water.

“There is nothing mysterious about Three Waters — it’s all about pipes under the ground. Our view is as it has always been: we stand here at Waitangi, the cradle of the Treaty of Waitangi, and here is the embodiment of partnership,” he said.

“What we seek from this government is an ongoing commitment that partnership will amplified and affirmed through Three Waters, [it is an] opportunity for the Crown and Māori to work together in a meaningful and significant way.”

Jamie Tuuta, an iwi leader from Taranaki, also warned against allowing Māori to become a political football this election.

“One of the key messages we want to give to the prime minister and other ministers is that they need to stand up, they need to step up,” he said.

“It’s unacceptable — because again, the racist and biased attacks on Māori in 2023 are unacceptable.”

A Pou Tikanga of the forum, constitutional law expert Professor Margaret Mutu, said it was essential race rhetoric was removed from electoral debate.

“There’s a need to understand and address racism in this country and over recent times it’s got a lot more urgent,” Professor Mutu said.

“We need to make sure that work doesn’t slow down, particularly as the extreme attacks coming in are very, very hurtful. We want to try and stop that hurt.”

Te Arawa’s Monty Morrison said the meeting went “very well, it was very open.”

Ngāti Kuri’s Harry Burkhardt said they “were clear about our message, and I think Chris received that well”.

Luxon, Seymour respond
Co-governance was a topic National’s leader Christopher Luxon chose to address when he visited Rātana last week. His speech accused the government of failing to make its position on the matter clear, and allowing it to become a “divisive and immature” conversation.

National had been invited to meet with the Iwi Chairs Forum but declined. In a written statement after the kōrero at Waitangi today, Luxon said the party had been clear about its position.

“We support co-management between government and Māori for natural resources in the context of Treaty settlements. We do not support co-governance of public services or separate bureaucratic systems for Māori and non-Māori,” he said.

“Labour has progressed a divisive agenda and continually failed to set out its views clearly. It is disappointing to see the new Prime Minister try to shut down the discussion rather than clearly setting out Labour’s plans for the public to judge.”

Luxon has previously raised as examples National does not support:

• The Māori Health Authority, which sets strategy for overcoming racial health gaps and commissions kaupapa Māori health services
• The Three Waters legislation allowing equal representation between council and iwi appointees on a strategic oversight group which appoints the management board of the four entities set to take over management of water services

ACT leader David Seymour — who has Ngāpuhi roots — has been even more stridently critical of these, arguing they are race-based approaches which only further divide.

“If the prime minister thinks that ACT is making co-goverment divisive, wait till he hears what Labour’s been up to,” he said.

“Their modus operandi is to divide public affairs between two groups of people based on race — that is divisive and it’s unsurprising that opposition parties are raising concerns.”

He bristled at being labelled an “attack dog” by Morgan.

“Again, it’s a shame. The Iwi Chairs Forum were an organisation we’ve enjoyed good relationships with.

“That kind of language, calling people dogs, well it doesn’t exactly sound like they’re coming to the table to make the situation any better, now, does it.”

Three Waters changes yet to be decided
Since taking over as Prime Minister from Jacinda Ardern, Hipkins has promised his government will focus more on the “bread-and-butter” issues, targeting cost-of-living pressures and cutting back some of the government’s work programme.

Media speculation has highlighted the unpopularity of the government’s RNZ-TVNZ merger and the Three Waters projects, and therefore likely on the chopping block.

Hipkins signalled announcements within weeks about the slimmed-down work programme, but when pressed about Three Waters early this week spoke about the need to change the status quo — statements he repeated today.

“We’ve been doing so many different things, actually we probably haven’t created the space to make sure people understand what we’re doing and why we’re doing it and that is absolutely, I think, a lesson for us over the last five years and it’s something we have all reflected on and you’ll see some change in that regard.

“I haven’t said a lot in terms of ruling things in and out, but one thing I will rule out is no reform . . .  we can’t continue with the status quo — it is not delivering New Zealanders the water services they need and that they deserve.

“If we leave it just with the status quo, one thing it will deliver is significantly higher rates for households, and I’m not willing to just stand back and say ‘that’s a council problem to deal with’.”

He has, to date, refused to outline what any of the changes to the project might be — saying those decisions are yet to be made by the full Cabinet — but speculation has centred on the co-governance aspect.

“I think everybody acknowledges that what we’re doing now or around the way we manage our water infrastructure in New Zealand is not sustainable, and it has left us with a pretty disgraceful legacy, frankly, of that core infrastructure being run down.”

Taranaki iwi leader Jamie Tuuta said whatever changes came, they expected the same level of engagement and partnership.

“By and large what we ask is that we are respected and that [Hipkins] and his ministers engage openly with us in the event that there are any changes.”

With an election in October, Morgan and the other leaders present at today’s forum are clear: they want bold leadership and partnership, and however this year’s election plays out — they will still be there.

“This is a ongoing journey for us,” Morgan said. “Absolutely, we would want a very clear and unfettered response and commitment from this government that they’re not going to walk away, nor are they going to throw us under the bus for their own political means.

“Iwi will be at this side of the table come the election, we’ll deal with whoever the government is. What is clear in this situation is we are enduring, iwi will remain as the Treaty partner.

“Whether we deal with Hipkins after the election or the National Party, we will see, but all we say is that we want an equitable share in the major decisions that affect our people – that’s our bottom-line expectation.”

This article is republished under a community partnership agreement with RNZ.

Iwi leaders warn Hipkins not to bow on Three Waters co-governance https://t.co/upsPqJEbMm

— RNZ News (@rnz_news) February 3, 2023

Prime Minister Jacinda Ardern says her Aotearoa New Zealand government will not back down on advancing Māori issues, even if National frames co-governance as central to the 2023 general election.

“You’ve got to be able to sleep at night, knowing that you’ve done your best and you’ve done what you’ve believed is right,” Ardern told TeAoMaori.news

The Māori Health Authority, Three Waters and Māori seats on councils were achievements Ardern said the government was proud of.

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Ardern said she was “comfortable” the government was doing its best to fulfil obligations under the 1840 Treaty of Waitangi.

“We haven’t been perfect. But I am comfortable with what we’ve tried to do to make sure that we are fulfilling our obligations as the Crown, that we’re fulfilling our Treaty obligations.”

Ardern said the Government was proud of the 6.8 per cent Māoriunemployment rate,although she conceded homeless families living in motels still needed tackling.

“I don’t want anyone living in a motel. I want someone in a warm, dry, safe environment. But I also don’t want people living in cars. And so this has been a transition for us while we build more public housing, and we are,” she said.

Mandate protests
Reflecting on 2022, Ardern conceded it was another tough year, singling out the vaccination mandate protests on Parliament grounds as her biggest challenge.

Ardern said the protests were upsetting for many in Aotearoa who saw vaccination as key to reopening the country.

“For New Zealand, I think it deeply affected people,” Ardern said.

There were moments she thought about talking to the protesters but a previous attempt during a government walkabout with vaccinators that was scuppered by protesters prevented that.

“I did stop and try and have a conversation with the people there. And what became clear to me is that the starting point for that conversation was so different for me, and then that was very hard to cut through,” Ardern said.

“I had a practice in the past of talking to protesters in fact. I remember very early on the DPS [the PM security team] having to learn, that was part of the way that I was going to do the job.”

UN declaration
Ardern was asked about comments from Māori Development Minister Willie Jackson that he would be pumping the brakes on co-governance initiatives set out by the United Nations Declaration of the Rights of Indigenous people (UNDRIP), signed by the National government in 2010, because several recommendations would not fly with certain Cabinet members.

“Why is it someone in Cabinet is ‘not comfortable’ with co-governance? And should someone be in the Cabinet if they’re not comfortable with co-governance?” Ardern was asked.

“What he’s talking about are some of the thoughts and debate around the UN declaration, the next stages of ensuring that we are doing our bit, as yes, the National government signed us up and then did nothing, and left us to figure out ‘how do we fulfil our obligations?’

“What he’s [Jackson] talking about is through that process, there’s been a lot of ideas. Some of them, we can confidently say, New Zealand already does, othersare challenging. So he’s broadly discussing the next steps.”

Ardern said that as she looked ahead to this year’s election, she had no interest in fighting it on race, saying she would campaign on the government’s record.

“When there’s change… people will sometimes be confronted by that, and it’s our job to try and bring people with us, but that will sometimes be challenging,” Ardern said.

“Our record is growing Māori housing. Our record is growing Māori employment opportunities. Now our record is growing the Māori economy. I will happily campaign on our record.”

Republished from Whakaata Māori. First published in The New Zealand Herald.