In his 6 May 2022 LawNews article Lawyers must reject co-governance and coercion’, Gary Judd QC mounts a number of arguments against co-governance arrangements. His arguments span headings such as our constitutional history, an appeal to reason and the importance of the rule of law and equality under the law.
Judd’s arguments also appear to reference absolutely unfounded suggestions of coercion and threats by those advocating for co-governance.
I have worked with iwi for almost 20 years in negotiating treaty settlements and co-governance arrangements. To imply that I, my colleagues or my clients have ever based any of those discussions on threats or coercion, that we are not ‘ordinary New Zealanders’ for arguing these positions or that we are ‘extremists’ is deeply offensive.
Judd’s entirely inappropriate analogy to current events in the Ukraine also shows a profound lack of knowledge of the history of Aotearoa. If one wishes to evoke parallels with Mariupol and Kyiv then one needs to first look to Ō-Rākau and Parihaka.
But, putting this rhetoric aside, Judd’s arguments can be countered under the broad headings he argues. As lawyers, we should be embracing and exploring discussions about co-governance arrangements. Here is why.
Judd takes us on a historical journey through our constitutional framework from the Magna Carta to current legislation. But, on that journey, he has overlooked a number of key parts of our constitutional history, including Te Tiriti and He Whakaputanga.
Any discussion of our constitution which does not include these documents is fundamentally flawed from the start. This is particularly so in the context of a co-governance discussion.
There is no doubt Te Tiriti is difficult and challenging. We can debate the details of the meaning of rangatiratanga and kawanatanga, of sovereignty and chieftainship and how these ideas relate to each other. We can argue what issues or resources these concepts apply to. There are no easy answers here.
But that is the point. Our constitutional beginnings are about how different governance concepts are to be balanced, intertwined, reconciled here in Aotearoa. Talking about co-governance is at the core of our constitutional whakapapa.
It is for this reason that lawyers should embrace discussions about co-governance as being entirely consistent with our constitutional heritage.
Judd takes us to Thomas Jefferson as a source of reason and principles for a civilised society. Of course, it can be argued that Jefferson could have benefited from some ‘co-governance’ in his own writings. These might be much more compelling discussions on human rights and fundamental liberties if Sally Hemings had also been able to set out her thoughts on the subject in Notes on the State of Virginia.
But Judd is right that free inquiry, reason and the persuasion of others is fundamentally important in any discussion of co-governance.
The difficulty is that free inquiry and reason is largely missing from his article. Claims of coercion and threats are made with no justification or evidence. Aspirations and motivations are ascribed to those of us working on co-governance issues with no inquiry having been made of us as to what these might actually be.
Nor is the question ever asked as to whether co-governance would work. Would it deliver better outcomes? Would it reduce the significant disparities for Māori across areas like health and justice? Would it lead to better management of our natural resources? What is the actual impact on non-Māori of more involvement by Māori in decision-making?
Those of us working in this space freely inquire into those types of questions. When we do, we are often persuaded that the answer may very well be ‘yes, co-governance is better’ (or at least ‘it’s worth a try because it can’t be much worse’).
So, again, lawyers should embrace co-governance discussions. They are reasoned discussions about what might actually work to achieve the best outcomes for everyone in Aotearoa. They are discussions that draw on a range of perspectives and world views and open our minds to fresh understandings. They are discussions that might take us to Thomas Jefferson’s writings but they take us to Moana Jackson’s too.
Rule of law and equal rights
We can also agree with Judd on the importance of the rule of law and equality before the law as being fundamental principles. From there though, there is a misunderstanding of what co-governance is and its relationship with the rule of law.
Co-governance is, simply put, a mechanism for drawing in different voices and different perspectives to how a particular issue or resource might be managed. What comes out of that structure still applies equally to everyone.
There are a number of reasons why including those different voices is important.
It may be that groups – like hapū or iwi – have legally recognised rights and interests in particular resources that mean it is important to ensure their views are included in management.
Or it may be that in areas like health and justice, where the current systems result in significant disparities for Māori, it is important to ensure a Māori perspective is present in decision-making to understand why this might be and what can be done to address it. These reasons all aim at ensuring equality and equity.
In addition, co-governance frameworks have never been forced through outside the rule of law – never by extremism, coercion, threats of violence or by espousing civil war.
They are developed in a way that is firmly grounded in the law and our legal system. They flow from the recognition of legal rights won in the courtroom and in other tribunals. They are developed at the negotiation table. They are given effect to by our Parliament, by our elected representatives across the range of political parties and are set out in statute. They reflect Te Tiriti.
This path, working within the rule of law, has been set by those who have come before us. For example, it upholds the directive given by Te Kooti-Arikirangi that, following the violence of the 19th century, Ko te waka hei hoehoenga mā koutou hei muri i au, ko te ture. Mā te Ture anō te Ture e āki (The canoe for you to paddle after me is the law. Only the law can be set against the law)”.
Suggestions that aspirations for, and work towards, co-governance are somehow outside the rule of law are deeply ill-informed of the history of Aotearoa and how this guides us all today.
It is open for others to disagree with a co-governance arrangement and argue that view in court, in Parliament, or in other legal forum. We may win or we may lose that debate within our legal system and applying the law equally to each of us. But all this occurs within the law.
This is why it is important for lawyers to openly engage with co-governance discussions. They are debates about how to reflect and provide for legal rights and how our legal and governance structures might provide equal and equitable outcomes. They are discussions about how to uphold the rule of law.
Rejecting those discussions based on fear, ignorance and misinformation is a rejection of the rule of law, a rejection of reason and a rejection of our history.
Our obligation as lawyers is to be better than that. ■
Baden Vertongen is co-president of the Māori Law Society (Tumuaki Tāne, Te Hunga Rōia Māori o Aotearoa) ■