Daniel Haines (University of Auckland – Faculty of Law) has posted Concession Theory and Post-Settlement Governance Entities: Māori Legal Autonomy Within State-Defined Corporate Forms on SSRN. Here is the abstract:
How do state-defined legal forms both enable and constrain Māori governance? This article applies concession theory to post-settlement governance entities (PSGEs) in Aotearoa New Zealand to examine how Crown-created legal persons facilitate the management of iwi assets while simultaneously placing limits on the exercise of rangatiratanga. Drawing on Waikato-Tainui and Ngāti Whātua Ōrākei, this article shows how iwi embed tikanga Māori within formal governance settings. It uses those examples to examine how tikanga-based governance is carried through PSGE structures, and how its legal force remains shaped by statutory obligations, compliance regimes, and Crown-recognised legal forms. The article argues that Māori governance cannot be fully realised through state-created legal personhood. While PSGEs are a mechanism for iwi to advance their objectives, they also render the legal effect of Māori authority dependent on Crown-defined forms. This dependence sustains an imbalance between settler law and tikanga Māori, because iwi exercise decision-making through legal structures that are created and bounded by the state. The article concludes by identifying the limits of concessionary corporate law and points towards the need for legal frameworks that can better accommodate tikanga as sources of authority alongside state law.
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