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Understanding Te Tiriti, co-governance, and human rights

23 November, 2023

Interview by Beth Torrance, adapted by Mahdhi Osman-Penrice

Professor of Law at the University of Auckland, Claire Charters, says that the practice of co-governance could be more comprehensive with Te Tiriti o Waitangi. Image: Wikimedia Commons

The Te Kāhui Tika Tangata, the Human Rights Commission, has released a fact sheet and FAQ explaining the connection between human rights, Te Tiriti o Waitangi, and co-governance. 

This factsheet aids in unpacking the current arrangements of co-governance in Aotearoa and how they are consistent with a modern democracy.

But Professor of Law at the University of Auckland, Claire Charters, told 95bFM's The Wire that co-governance in Aotearoa could be more holistic. 

“It does not cover all the places in which Māori should, and could, be practising co-governance”.

According to the Commission, Co-governance is a term used to describe various arrangements where Māori and the Crown share decision-making power or where Māori exercise a form of self-determination as a delegation of state power. 

Examples include the co-management of resources like rivers and mountains as part of Te Tiriti o Waitangi settlements, the provision of social services to Māori by Māori-focused entities such as Te Aka Whai Ora|Māori Health Authority, and the inclusion of Māori in local governance.

Charters cites a Harvard University research project on American Indian Economic Development that shows indigenous people do better socioeconomically when having self-determination; the act of independence without external compulsion, as well as being able to manage their own responses to their own issues. 

In addition to being a useful tool to address systemic inequities, Charters says that co-governance is one of the ways we can honour the obligation of a sharing of power arrangement, Crown kāwanatanga authority and iwi and hapū rangatiratanga, under Te Tiriti, in particular, articles one and two. 

However, as it stands, co-governance does not fully honour the Crown’s obligations under the treaty. 

 “It is not done on a macro level,  it is not part of a fulsome policy around co-governance, it is quite piecemeal,” says Charters.

“The Crown retains ultimate authority, and can withdraw co-governance whenever it likes, given that it is always part of either legislation or policy”.

Charters argues New Zealand lacks formal and robust protection of human rights in laws found in other Western democracies, including the US, Canada, and most European countries.

She believes co-governance is incredibly important for the “protection of the rights of minorities.”

Charters believes that progression on establishing more comprehensive arrangements with co-governance is possible.

“I think you could establish arrangements where there is real power sharing so that arrangements are constitutionally not dependent on the Crown's benevolence and there is fundamental constitutional sharing of jurisdiction.”

Listen to the full interview

Public Interest Journalism funded through NZ On Air