Part 4: Working together

Principles for effectively co-governing natural resources.

4.1
In this Part, we discuss how parties need to:

be clear about the type of arrangement that will help them to achieve their purpose, including which mechanism for setting up the arrangement is best for them;
take into account the time it takes to prepare to co-govern and to co-manage;
be clear about how they work together, including the extent of their decision-making powers and their roles and responsibilities; and
regularly review their agreements.

Summary of what we learned about how parties should work together

4.2
Natural resources and environmental projects can be managed under many mechanisms. Parties need to have a shared understanding about which mechanism will best help them to achieve their purpose.

4.3
Parties need to take the time to plan and set up processes. They need to recognise that putting effective processes in place takes time and recognise the ongoing time and resources it takes to support co-governance.

4.4
Parties need to have a shared understanding about the extent of their decision-making powers. This benefits both the relationship and the project. It also provides clarity about people's roles and responsibilities.

4.5
It is helpful to regularly review the terms of reference of agreements to ensure that they are still fit for purpose as circumstances and aspirations change.

Many ways to set up co-governance

4.6
The examples of co-goverance that we looked at were set up under many mechanisms. Some were set up under Treaty settlement legislation. The Rotorua Te Arawa Lakes Strategy Group was set up under the Local Government Act 2002 and given permanent status through the Te Arawa Lakes Settlement Act 2006. Others were agreements given semi-formal status through a signed agreement or memorandum of understanding. The Maungatautari Ecological Island Trust was set up as a charitable trust.

Figure 4
Mechanisms that set up the co-governance arrangements

Name	Type of entity/mechanism	Legislation
Tūpuna Maunga o Tāmaki Makaurau Authority	Statutory entity, Treaty settlement	Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014
Waikato River Authority	Independent statutory body, Treaty settlement	Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 Ngāti Tuwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act 2010 Nga Wai o Maniapoto (Waipa River) Act 2012
Te Waihora Co-Governance Agreement	Voluntary agreement	not applicable
Rotorua Te Arawa Lakes Strategy Group	Joint council committee under Local Government Act 2002, confirmed by Treaty settlement legislation	Te Arawa Lakes Settlement Act 2006
Ngā Poutiriao o Mauao	Memorandum of Understanding	Not applicable
Maungatautari Ecological Island Trust	Charitable Trust	Not applicable
Ngāti Whātua Ōrākei Reserves Board	Reserve Board, Treaty settlement	Ngāti Whātua Ōrākei Claims Settlement Act 2012
Parakai Recreation Reserve Board	Reserve Board, Treaty settlement	Ngāti Whātua o Kaipara Claims Settlement Act 2013

4.7
The parties to the Te Waihora Co-Governance Agreement said that their agreement was voluntary and not enforced by a Treaty of Waitangi settlement. For them, this made a difference – they said it took more time to form the agreement. One of those involved told us: "There was no legislation behind our relationship, so we had to be more patient and more innovative in our approach." However, another participant maintained that "even with a Treaty Settlement, it takes time to work out co-governance … A Treaty Settlement is only the start [of a relationship]".

4.8
A participant in another project said that theirs differed from voluntary agreements because legislation had mandated the relationship. However, as another participant in the same project pointed out, "no amount of writing into an Act will say how relationships will work, what they look like, and how they should act".

Reserves Act 1977

4.9
Several of the co-governance examples that we looked at were managing reserves under the Reserves Act 1977. The Reserves Act provides for areas having conservation, scenic, historical, or other values to be preserved and managed for the public's benefit and enjoyment. Reserves can be governed and managed by central government, local authorities, reserve boards, or other administering bodies. The Reserves Act sets out management and accountability requirements for those responsible for the reserves, including some financial accountability requirements.

4.10
The Reserves Act did not anticipate Treaty settlement co-governance arrangements. As a result, Treaty settlement legislation often requires specific provisions to make the Reserves Act work in a co-governance arrangement.

4.11
We heard mixed views about how the Reserves Act works in the context of Treaty settlements. One council representative commented that:

The Reserves Act is quite prescriptive. It still refers to cheque signatories. It is quite interesting trying to apply it to the co-governance world. So, while the responsibility is devolved down to councils, it still is quite an intensive Act to work out.

4.12
Another person noted that they found it best if the parties that were going to be responsible for implementing the settlement were also involved in the Treaty negotiations, and, where appropriate, could influence the final details of co-governance to ensure that it was workable. In our view, this could include further consideration of existing third-party rights over reserves and considering whether there is any scope to re-negotiate significant third-party interests, such as long-term leases, if all the parties are willing.

Planning and setting up good processes takes time

4.13
We saw the value of planning when setting up co-governance arrangements. In some instances, this planning takes time. For example, preparing a co-governance agreement between Ngāi Tahu and Canterbury Regional Council took about a year, which one participant said was "reasonably fast" for such an agreement.

4.14
In December 2012, a Redress Deed was signed by the Crown and the Tāmaki Makaurau Collective. In August 2014, the Act setting up the Tūpuna Maunga o Tāmaki Makaurau Authority came into effect. In September 2014, the Authority had its first hui. The gap between signing the deed of settlement and the first meeting gave the Tāmaki Collective and Auckland Council staff time to discuss how they were going to work together. They discussed the financial reporting format, frequency of reporting, and programme for meetings. Participants told us that it was worth investing the time early on because it saved time in the long run. It meant the Authority could "hit the ground running".

4.15
The Waikato River Authority took time to set up its processes before allocating any funding for restoration initiatives. It told us that it used expert advice, such as legal and tax and independent audits, to help ensure that it had good policies and processes in place (see paragraph 6.9). The Waikato River Authority made the decision that no money would be allocated to projects in the first financial year while it was getting the funding strategy in place. Part of its approach involved ensuring that other parties, especially potential applicants for funding, understood that the Waikato River Authority had to have the right processes in place before it could start funding projects.

4.16
In contrast, the Maungatautari Ecological Island Trust built a predator-proof fence before it had sorted out all the matters that would affect the running of the sanctuary. The Trust started building the fence to maintain the momentum of and community interest in the project. This meant that it started without securing all its funding. More importantly, although land owners agreed to have the fence on their properties, these agreements and access through properties for fence maintenance purpose were not secured at the time. Some of these matters remain to be resolved at the time of our audit.

4.17
These examples highlight the importance of taking time to get important processes sorted and managing expectations of external stakeholders at the same time.

Making decisions by consensus

4.18
Many of the examples we looked at use a consensus decision-making model. For example, as stated in its agreement, all decisions of the Te Waihora co-governance group must be "reached through the highest level of good faith engagement and made on a consensus basis". In this case, a consensus means a consensus between a majority of the commissioners and a majority of the board, rather than all of the individual members.

4.19
As stated in its legislation, the Waikato River Authority must reach decisions by consensus and, in working together, the members must reach decisions pursuing "the highest level of good faith engagement".

4.20
Ngā Poutiriao o Mauao operates on the basis of consensus decision-making. If this is not achieved, then resolutions can be passed only when a 75% majority agrees.

Fortunately it hasn't had to come to that … We have a conversation. A board approach works better for this kaupapa, where we are talking and trying to listen and understand each other.

4.21
A Maungatautari Ecological Island Trust general meeting strives to reach consensus decisions on all matters. If a consensus decision cannot be reached on a question, the motion is decided by a majority of votes. Each member gets one vote. If voting is tied, the motion is lost.

4.22
While consensus is not the same as unanimous agreement, it is important that co-governors seek to make important decisions with full board support. Reaching consensus means the parties are talking and agreeing on shared objectives. This might mean decisions take longer to be reached, but the outcome is often more enduring. Making decisions consensually needs processes that support the relationship, not supplant it or get in the way. As one interviewee explained:

You need structure and relationships. No formal structure [or process] can work if you're not willing to talk to the other person. You do need structure, but structure alone doesn't work.

Administrative and advisory processes

4.23
The parties in the examples we looked at highlighted the time and resources it takes to support co-governance and the need to take into account sufficient resourcing and support for the parties to carry out their business. They mentioned:

administrative support for setting agendas, briefing members, and recording minutes;
legal, policy, or scientific advice;
communication and media support; and
support for financial reporting.

4.24
Where co-governance is part of a Treaty settlement, these processes are often included in the settlement legislation. Others used memorandums of understanding, terms of reference, or other signed agreements. Some parties told us that they used local authority procedures to run meetings.

4.25
Others spoke of how they were trying to incorporate tikanga Māori into their meetings, such as opening with karakia or holding meetings on marae. Some mentioned that, through working with iwi on these projects, local authority staff, who had not been exposed to it, were gaining an understanding of, and appreciation for, tikanga Māori and iwi aspirations.

Understanding the extent of decision-making powers

4.26
A shared understanding about the extent of decision-making powers benefits both the relationship and the project. It provides clarity about people's roles and responsibilities, which helps the project to run smoothly.

4.27
The extent of decision-making powers generally relates to the level the parties operate at. Governance focuses on strategic matters, while management is concerned with day-to-day operational responsibilities. Co-management then implies the sharing of decision-making and responsibility while co-governance gives decision-making authority and control to an entity that combines state or official authority and local community authority.

4.28
Whether parties operate at a governance level, a management level, or somewhere between, all parties need to understand the extent of their powers, and whether they are working strategically or operationally.

4.29
Understanding the extent of their powers, and whether they are operating at a strategic or operational level, helps to define the roles and responsibilities of the parties.

Defining roles and responsibilities clearly

4.30
The co-governance examples that we looked at highlighted the importance of clear roles and responsibilities. In particular, roles need to be defined in a way that supports the co-governance and/or co-management focus of the parties.

4.31
The parties in the Waikato River Authority considered that their roles and responsibilities were spelt out clearly in legislation, which provided certainty. Section 22 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 (the Settlement Act) states that the duty of the members is to act to achieve the purpose of the Waikato River Authority.

4.32
The purpose of the Waikato River Authority is to:

set the primary direction through the vision and strategy to achieve the restoration and protection of the health and wellbeing of the Waikato River for future generations;
promote an integrated, holistic, and co-ordinated approach to the implementation of the vision and strategy and the management of the Waikato River; and
fund rehabilitation initiatives for the Waikato River in its role as trustee for the Waikato River Clean-up Trust.⁹

4.33
The Settlement Act sets out the composition of the Waikato River Authority and how members are to be appointed. Some participants explained that, as appointees, members are there to represent the "best interests of the river", not to represent their own (or their constituents' or iwi's) interests.

4.34
Those we spoke to who were involved with the Waikato River Authority were confident that its members had governance and leadership experience, meaning that they understood their co-governance role.

4.35
A memorandum of understanding sets out the functions of Ngā Poutiriao o Mauao Joint Administration Board, which includes preparing and reviewing a Mauao Reserve Management Plan. The memorandum of understanding states that, to avoid doubt, where any matters arise that are outside the purpose or functions of the joint board or objectives of the Mauao Reserve Management Plan, instructions must be sought from the Mauao Trust.

Reviewing terms of reference and agreements regularly

4.36
Although it helps to get as much sorted out as early as possible, parties said that it was also important to regularly review the terms of reference or their agreements to ensure that they remain fit for purpose as circumstances and aspirations change. In 2013, the Rotorua Te Arawa Lakes Strategy Group's review of its terms of reference led to them being amended (see Figure 5).

Figure 5
Changes to Rotorua Te Arawa Lakes Group's terms of reference

In 2010, the three partner organisations in the Rotorua Te Arawa Lakes Strategy Group had an independent "health check" of how well the terms of reference were meeting the partners' intent. The health check recognised that: … you have to revisit it [the arrangement], and you will have to spend time in each co-governance situation to see how it's shifted and changed. One of the outcomes of the health check was that the parties agreed to explore further the group's constitutional decision-making process − in particular, to look at the group's role in specific functions and to work on an agreed understanding of how decision-making on lake-specific "policy, strategies and agreements" would work. In 2013, the terms of reference were amended to set out the groups' specific responsibilities and delegated functions. One participant said that, despite the terms of reference, the matter of decision-making had not yet been solved. However, some pointed out that it might not matter in the end, if the parties are willing to work "hand in hand" with each other and achieve agreed outcomes. Changes to the strategy group included changing the name of the group from the Rotorua Lakes Strategy Group to the Rotorua Te Arawa Lakes Strategy Group. The chairperson of the Te Arawa Lakes Trust told us that the iwi felt that the original name did not fully represent Te Arawa's interest in the lakes. Another change concerned the chairperson of the strategy group. Originally, the Mayor of Rotorua District Council chaired all the meetings. The partners agreed to change the chairperson every year. In mid-2015, the chairperson of the Te Arawa Lakes Trust chaired the strategy group. The chairperson of the Trust and strategy group described the name change as "another sign of people's willingness to sit down and discuss people's perspectives". The chairperson of Bay of Plenty Regional Council explained that changing the chairperson for the strategy group recognised the partnership approach. One matter that several people we spoke to raised was about being able to change the composition of the strategy group's membership. The current membership comprises one-third Te Arawa Lakes Trust, one-third regional council, and one-third district council. The chairperson of the Te Arawa Lakes Trust had strongly argued for iwi to account for half (three out of six) of the membership at the start. Others now also think that it would be useful to have a flexible arrangement to adapt to changing circumstances. In most new similar arrangements involving iwi and territorial local authorities, iwi representatives account for half of the members.

4.37
Ngāi Tahu and Canterbury Regional Council also reviewed their agreement to make sure that they had the right people at the right level (see Figure 6).

Figure 6
Changes to the Te Waihora Co-Governance Agreement

Canterbury Regional Council and Ngāi Tahu wrote and signed an agreement that set out the functions, powers, and duties that they would exercise jointly. However, some of the early iwi representatives on the co-governance group were seen as not understanding their roles and responsibilities. We were told that they were too focused on operations but wanted full governance immediately. This led to a challenging relationship: They wanted to go down to the operational level on what plants were to be planted, instead of focusing on the strategy, direction, and vision. Some people also came with their "baggage". For example, some of the Ngāi Tahu representatives were described as being stuck in "grievance mode": They are used to trying to get what they can from the enemy. But that doesn't make for a good long-term relationship … what [they] don't understand is that with co-governance they've got to give up something as well. This led to the partners revising the board membership to include the Kaiwhakahaere (chairperson) of Te Rūnanga o Ngāi Tahu to ensure that they had people who were used to operating at the strategic and governance level. A later amendment saw the Mayor of Selwyn District Council included in the agreement. The members considered that including the Mayor would help ensure that the co-governance agreement will continue after the commissioners are replaced.

9: See the Waikato River Authority website at www.waikatoriver.org.nz.