What’s important in this world? The rivers, the lakes and collaborative frameworks

The field of “co-governance” of some of Aotearoa New Zealand’s key natural and physical resources has for many years been thought to be reserved for specialist Treaty lawyers — but that is evolving and requiring new skills and diversification for public and private lawyers in some regions of the country. This article provides some context about co-governance arrangements, and — from an implementation perspective — discusses challenges that an advising solicitor may encounter.

Co-governance entities have developed uniquely in New Zealand (compared with other countries with indigenous populations) as collaborative frameworks for significant waterways and waterbodies, including freshwater, estuarine and harbours. These frameworks provide new and important avenues for environmental management and bringing the collective wisdom, relationships and resources of tāngata whenua of any given locality together with that of central and/or local government representatives. Some co-governance entities include community or other stakeholder representation. They all result in the blending of public and private interests and values whilst at the same time recognising an imperative place for Māori in the management of natural resources.

Co-governance context

In the world of co-governance one size does not fit all. There will be something different in each entity from its creation, its membership, the purpose and functions, to scope and interface with environmental laws, the natural and physical resource being governed (and its state of health and well-being and associated management challenges).

There are ongoing debates seeking to delineate between ‘co-governance’ and ‘co-management’. From the author’s perspective, that is semantics best left to academics. It is all about collaborative processes and opportunity with an entity and its membership working towards a collective goal of sustainable management and enhancement of the environment.

Another critical matter to appreciate is that a co-governance entity is complementary to and not substitution for the participatory and consultative rights of tāngata whenua/iwi, hapū, whānau in our resource management processes.

For those who like to appreciate distinctions ... the key characteristics of co-entities may include:

Co-governance = high level governance; strategic directions; defining values; setting common aspirations, vision, objectives, action priorities and planning to achieve those; development of a public statutory document which interfaces with localised regulatory and planning frameworks; influencing decision-making (including funding, use and allocation of the natural resource, and the means to achieve the mutual co-governance goals)

Co-management = medium to lower level governance; operational decision-making; directing or conducting physical day-to-day management; natural resource may be publicly or privately owned; the entity may have a contract for service delivery; management and planning more localised and informal

So where is the nexus and authority for co-governance? Predominately entities have come into being as part of cultural redress packages for settlement of historical Treaty grievances of iwi claimants. Key examples include co-governance structures for national and/or regionally significant rivers, lakes and their catchments (ie, Te Arawa Lakes Strategy Group (2006), Waikato River Authority (2010), Rangitāiki River Forum (2012), Te Maru o Kaituna River Authority (2014), and Te Pou Tupua (for the Whanganui River (2017)). Another significant example of co-governance is Te Urewera Board (2014) which is unique in terms of its governance with separate legal status and identity for land and resources which, prior to the Treaty settlement with Ngāi Tūhoe, were managed as a national park. All of these co-governance arrangements are founded in Deeds of Settlements and then empowered discretely through Treaty settlement legislation.

There are other legislative foundations by which collaborative frameworks might be established. Under the Local Government Act 2002 and the Resource Management Act 1991 (RMA) in particular there are avenues (which to date have not widely utilised) to establish joint management committees or the delegation of statutory functions to certain bodies.

The RMA reforms of 2018 heralded the introduction of a new instrument Te Mana Whakahono a Rohe which focuses on building constructive relationships, process and practices between iwi and agencies in the RMA space. The intent of this instrument is to enhance Māori participation in the RMA resource management and decision-making processes but co-governance is not within scope.

Lastly, there is wide diversity of voluntary-based agreements, protocols, memoranda of understandings and relationship documents throughout the country between Māori, central or local government and/or other stakeholders. Generally these will be localised or project based and none will have the same statutory power and integrity of legislated co-governance arrangements.

Capacity

The most fundamental matter for the success and durability of co-governance is for representative parties and their appointees to get to know each other and build their relationships and trust. In many cases, prior history and negative experiences for Māori often means this can take time. More often than not both tribal appointees and local government representatives may not necessarily have been involved during Treaty settlement negotiations. That requires the advising solicitor to go back to basics of statutory interpretation for educating co-governance members (and to keep repeating that exercise as members transition on to the entity).

The capacity of parties to the co-governance arrangement is also important for creating, over time, a level playing field such that each side of the equation is building shared knowledge, capacity, participation and responsibility. Local government agencies are assigned the secretariat role and administrative responsibility for the co-governance entity, but over time and with maturity there would be no barrier to an entity looking to use other external services.

It may be challenging at times for council officials in a technical advisory role to a co-governance entity because the blend of representatives and interests at the table may mean debate, consideration and/or decision-making does not reflect an official’s experience with their usual council committee. Co-governance does not take so kindly to recommendations of an official or necessarily endorse an official’s viewpoint. Effective co-governance with robust leadership promotes open engagement to arrive at a collective full consensus decision which might not be the usual route that local government officials experience.

Legal advisors need to be mindful of the principles and parameters of conflict of interests. The co-governance empowering legislation stipulates that an iwi member’s association to his or her tribal connections does not detract from their full participation in the business of the co-governance entity; and to avoid doubt, such membership does not mean he or she are members of a local authority. It is also imperative for local government appointees to appreciate the boundaries. For example, he or she may be participating in a co-governance decision which then subsequently will come before a committee or full council meeting for final determination as a councillor.

A member council’s legal advisor might also be asked to provide advice to the co-governance entity and that must always be premised with clarification that such advice is given on behalf of the respective council; and that other local government or iwi members or the co-governance entity in its own right is entitled and may need to seek independent legal advice.

Integration

Co-governance entities are deemed to be a permanent “joint committee” of representative councils in terms of the Local Government Act 2002 (LGA). However, the empowering legislation also makes a number of modifications, disallows and/or transplants a number of sections and clauses of the LGA and its schedules to support co-governance processes.

As well, an entity must adopt standing orders which cannot contravene the LGA, the Local Government Official Information and Meetings Act 1987 or any other legislation; and which must also respect tikanga Māori protocols and practices. An entity has discrete power to appoint sub-committees in advancement of its purpose.

These integrations are to balance and recognise the accountability and transparency obligations for a co-governance entity because they carry out a public role with the application of public funds (but not exclusively as there could be private or other funding arrangements). However, such integration respects and recognises that the co-governance entity has firm avenues to incorporate traditional and cultural norms, including Mātauranga Māori knowledge in relation to the natural resource and co-governance goals.

Another significant example of integration is where a principal output from a co-governance entity is a statutory document which from its inception, policy and development, public submission and hearing process, decisions and final approval of such document brings into play the vision and objectives of the entity for the natural resource. This document has different interplays with the RMA and LGA. For example, RMA consenting processes must have regard to the document. All relevant local authorities must also recognise and provide for the vision, objectives and desired outcomes of the co-governance document when preparing or amending a regional policy statement, regional plan, or district plan under the RMA. In line with RMA planning timeframes, the co-governance document will be reviewed every 10 years (with differing procedure depending on the materiality of the review).

A co-governance entity has legal personality and its own statutory platform, purpose, powers, functions and administrative processes. In practical terms, as capacity of its membership increases and fulfilment of a key function (ie, developing the co-governance statutory document) it becomes even more important for all persons to appreciate that such an entity is not simply another local council committee. It is a discrete statutory body which has its own role to play in the sustainable management of a designated natural resource. An entity might also create its own mana/authority with a public interface quite different to that of regional and local government bodies.

Most co-governance structures operate a form of duality in that meetings will be rotated between a formal council chamber setting to a local marae or community-based venue. Te Reo Māori is freely used at times without the formality of notice or accredited translation. Such practices and environments might be completely new to non-Māori members and advisors requiring openness of mind and hearts.

Adaptation

Co-governance entities are vibrant living structures that by their nature and constitution will change over time. Experience is also showing that the issues confronting our environment and natural resources are also evolving and this is placing pressure and desire on the part of co-governance entities to expand their brief or scope of business. A clear example is responding and adapting to the challenges of climate change for our ecosystems.

Changes and rotations of representative membership of both iwi and local government mean relationship building is a constant exercise. There has been some work to adjust sitting terms and cycles to have more cohesion and continuity for membership and/or alignment with local government election periods so that an entity may not be faced every three years with a completely new set of members and loss of institutional knowledge.

Adapting the co-governance structure, membership, purpose and functions or any other key element of its being may be problematic in that empowering settlement legislation would need to be amended. That requires engagement and is at the mercy of Parliament which, after 10 years of operation of a co-governance entity, may be reluctant to meddle with Treaty settlement legislation. Thereby, some non-legislative aspects may be adapted by full agreement of representative members.

There appears to be a growing presence of non-members of the co-governance entity at proceedings which may demonstrate a heightened interest and awareness from community and environmental interest groups, stakeholders with rights or interests associated with the natural resource and the local public generally.

If the work of co-governance engenders more open and mutual dialogue between all facets of our communities, then is that a benefit not necessarily contemplated by the establishment of co-governance arrangements? Perhaps it also shows a maturing and developing appreciation of the rightful position and benefit that Māori can contribute towards the future of our significant natural and physical resources.

Conclusion

In terms of the Treaty settlement process, the September 2018 quarterly report of the Office of Treaty Settlements outlined that approximately 70% (ie, 77 out of 114 potential Treaty claimant settlements) have been concluded in Aotearoa New Zealand. This will inevitably result in more co-governance arrangements coming into being and interface with the regional and local environments. The devolution and economic position for Māori is likely to enhance their own capacity and resourcing to instigate wider utility of collaborative frameworks outside Treaty settlements.

Some of the challenges of co-governance outlined in this article may leave the reader with concern as to the complexity of such arrangements. That said, anything new and unique takes time to come to fruition. We must look towards the positive opportunities that co-governance brings – not only for the environment but also for relationships and cementing for the longer term the proper and rightful place of Māori authority in governance of significant waterways and other resources of this country. Every co-governance member has an eye towards the future generations whether they be an iwi or local authority appointment.

Donna Llewell donna.llewell@boprc.govt.nz is a committee member of ILANZ and In-House Legal Counsel for the Bay of Plenty Regional Council / Toi Moana. Donna’s legal practice is predominately in public environmental sectors, and she has worked on a number of key Treaty of Waitangi historical claims negotiations, settlements and her practice includes advising on implementation of settlement redress within a local government context.