Comparative Analysis of Contemporary Treaty settlement governance laws, policies and institutions within NZ and Canada (June 2005)
Group or Institution
University of Waikato
Author(s)
Robert Joseph
Abstract
This thesis research is a comparative analysis of contemporary Treaty settlement governance laws, policies and institutions within New Zealand and Canada. The research explores ways in which the respective dominant legal systems can evolve so as to accommodate the best governance values, structures and concepts of both Treaty signatories in New Zealand and the 3 founding ‘peoples’ of Canada. The indigenous and non-indigenous constellations in both geo-political boundaries are polyphyletic in their nature combining, in distinctive ways, ideas and practices drawn and transmuted from many sources into their governance traditions, laws and institutions. The thesis is seeking a coherent jurisprudence, derived from these polyphyletic traditions, which will have the flexibility and robustness to meet the future needs of the citizens of New Zealand and Canada as individuals, and as members of varied collectivities - familial, ethnic, social, cultural and political. disputes;
Post-Settlement Governance and Institutional Re-Design
One of the fundamental purposes of contemporary indigenous settlements is to address historic cultural loss and contemporary socio-economic immiseration associated with the loss of land, resources, identity and earning capacity. However, the reliance upon multiple tiers of governance and management committees imposes heavy personal and institutional demands on the indigenous infrastructure at the local (and sometimes the regional) level. Typically, post-settlement governance locally carries its share of conflict and criticism. Due to human fallibility, indigenous governance structures such as Tainui’s Te Kauhanganui and Te Kaumarua, Te Runanga o Ngai Tahu (TRONT), Te Ohu Kai Moana (TOKM) and Nisga’a Lisims Government (NLG), like all other governments, have and will continue to make mistakes. Occasionally, infighting, adverse options, investments errors, a perceived new (and sometimes old) stratum of indigenous elitism, nepotism, leadership mandates and legitimacy, a mix of tikanga, legal, commercial and social objectives, unaccountability, transparency and other governance dilemmas and challenges will emerge. When local constituencies become offended their frustration is directed towards the locus of power only to find it at their doorstep. With empowerment and self-governance comes responsibility and accountability and it is imperative that indigenous peoples collectively and individually adjust past entrenched mindsets to accommodate, prepare for and successfully overcome the inevitable post-Treaty settlement tensions and to allow for enhanced opportunities for successful Maori development at the local, regional, national and even international levels. This theme is not endemic to indigenous governance given that it also applies to local and national government policies, laws and institutions, and to the wider community.
One of the primary challenges for Tainui, Ngai Tahu, TOKM, Nisga’a, Maori, indeed indigenous and non-indigenous peoples generally, is to adjust entrenched attitudes, policies, laws and institutions that hinder personal and collective indigenous self-governance and development. Effective post-settlement governance and development demand positive change. Still, post-Treaty settlement governance challenges will continue to emerge both at the inter- and intra-tribal levels. Post-settlement governance for indigenous peoples and the wider community is thus replete with inherent and contingent dilemmas and contradictions. Many of these problems trace their genesis to the settlement process while others emerge because of the dynamic, evolutionary and revolutionary nature of the settlement in its aftermath. Specifically, the thesis addresses the following governance challenges:
- Political-legal institutional design for good governance;
- Governance models for maximising and appropriately balancing economic, social and cultural development;
- Governance structures – models of governance and species of justice;
- Governance imposed models – the rule of law, civil society, democracy and capacity building;
- Hybrid governance models and indigenised bureaucracies;
- Separation of governance and management, leadership accountability processes to indigenous constituencies, investors and lending institutions;
- Leadership mandates, representation and transparency;
- post-assimilationist and post-colonial or neo-assimilationist and neo-colonialist governance models;
- Social reflexivity, detraditionalisation, retraditionalisation and the perpetuation and invention of indigenous governance traditions;
- Appropriate dispute resolution processes and fora.
Given the recent enactment of the Maori Fisheries Act 2004, the allocation of Maori fisheries assets to Iwi entities that comply with good corporate governance principles, structures and processes is crucial for sustainable development and self-governance. Still, Maori governance entities that developed from the settlement of historic Treaty of Waitangi grievances have experienced governance dilemmas in one way or another hence the challenge for Maori to govern themselves effectively. An option for the Crown is to legislate for a new general-purpose legal entity that can be adopted swiftly by those groups who do not currently meet TOKM structural requirements.
Although TOKM acts as an independent and self-funding agency, the Crown retained a degree of control through its ability to appoint TOKM Commissioners but this position has changed with the Maori Fisheries Act 2004. Still, TOKM and OTS play key roles in the development of governance arrangements for Maori tribal groups through the insistence on pragmatic representational and structural conditions that must be met by tribal entities prior to the receipt of fisheries and Treaty settlement assets. To help tribes meet these requirements TOKM uses incentives such as assistance with governance structure design and implementation, capability building through scholarships and other training, and support for initiatives aimed at improving tribal member registers and enrolments. Ultimately, TOKM holds a powerful ‘stick’ with its gate-keeping abilities to withhold fisheries assets from non-conformers.
Good Maori governance within New Zealand is therefore topical and more importantly, critical in terms of the current Maori treaty settlements discourse, the influence of tikanga on the sustainable resource management and development of New Zealand’s environmental resources including the vexed foreshore and seabed debate; and the allocation of fisheries assets to Maori communities as long they establish robust, good governance structures at the Iwi level, and institute good governance principles and processes. At the end of December 2003, TOKM recognised approximately 58 ‘official’ iwi, and only 4 were compliant with TOKM’s good governance criteria. The enactment of the Maori Fisheries Act 2004 has changed the criteria and no Iwi entity is currently TOKM compliant. Our Iwi governance entities thus need to conform to the new criteria and have much work to do. Moreover, all Treaty settlement groups need to establish appropriate good governance structures as prescribed by OTS to receive and manage settlement resources in a manner that is commercially, environmentally, socially and culturally accountable and transparent. Striking the right balance in these areas is delicate but possible which is what I am accomplishing in this research hence the importance and relevance of my work.
For clarification, the community group in the Waikato region sponsoring my research is Te Kauhanganui o Waikato Inc – the post-Treaty of Waitangi settlement governance entity for Tainui.