Waitangi Tribunal Thursdays: The Constitutive Outside: After The Officials Have All Gone Home – Part Two of Two

29/01/2026

Last week I traced five patterns in the Waitangi Tribunal archive: constitutional arguments flattened into regulatory rules, regulations and rules displacing tikanga, institutional self-protection through performative change, allyship disrupting the sequence, and silence functioning as policy. Today, I want to ask what those patterns mean, specifically what they reveal about the structure of the state, and what an alternative might look like.

VIII.

So what does the archive reveal, when read in sequence?

My working hypothesis is this: the Waitangi Tribunal reports make visible a system that is not broken but built. Built for a specific purpose. Built on the assumption that the Crown’s authority was settled, singular, and unchanging. Where Te Tiriti created a pluralistic constitutional reality from 1840, the public sector operating model was constructed as if that reality did not exist.

This matters because it changes the nature of the problem we are trying to solve.

If the system were broken, if the failures documented in the archive were accidents or implementation errors, then the solution would be technical. Better processes. Clearer guidelines. More training. The tools the public sector knows how to deploy. But if the system is built, the problem is different. The failures are not bugs; they are features. The system is producing exactly the outcomes its architecture was designed to produce.

The policy advisory process exhibits a characteristic limitation. It speaks fluently of efficiency and outcomes, of evidence and value for money. It has learned, more recently, to speak of partnership and wellbeing. But it lacks a language for power, for conflict, for the constitutive outside that makes any consensus possible. This is not accidental. Liberal and neoliberal thought, as Mouffe (1993, p. 140) observes, lacks a full conception of the political because its individualism prevents it from understanding the formation of collective identities.

The broader policy advisory system, however, tells a different story. Once we widen the frame to include the full ecology of advice giving; Iwi and Hapū, think tanks and consultants, lobbyists and sector interests, academics and community organisations; we find considerably more room for the political as well as a wider range of evidence. These actors do not share the assumptions built into the state machinery. They bring competing interests, conflicting values, collective identities that the official process struggles to accommodate.

The policy advisory system, in other words, is potentially more agonistic than the process controlled solely by ministers and officials. The question is whether the state can learn to work with that agonism rather than against it: to treat the messiness of the wider system not as noise to be filtered out, but as the democratic resource it actually is.

IX.

The concept of the constitutive outside requires some elaboration, because it is central to what follows.

The term derives from Derrida, though it has been developed most extensively for political theory by Mouffe (1993; 2005). The core insight is this: every identity is relational. Every ‘inside’ is constituted by what it excludes. There is no positive identity that exists prior to, and independent of, its relation to an ‘outside’.

In the domain of collective identifications, which is after all the domain of politics, this has profound implications. The creation of a ‘we’ always involves the delimitation of a ‘them’. And this delimitation can always become political, in the sense that the other, who was until then considered only under the mode of difference, begins to be perceived as negating our identity, as putting in question our very existence (Mouffe, 1993, p. 2–3).

The lesson for public policy analysis is this: every consensus has an outside. Every settlement excludes. The question is not whether there will be a constitutive outside; there always is. The question is whether we acknowledge it, and what we do with that acknowledgement.

A policy advisory process built on liberal and neoliberal assumptions will struggle to make this acknowledgement. It will present itself as neutral, as universal, as serving the common good. But this presentation is only possible because certain voices, certain forms of knowledge, certain constitutional claims, have been placed outside the boundary of what counts as legitimate input.

Mum and I, cleaning offices. Dad, a union member often on the wrong side of the Emergency Regulations. The hapū whose mātauranga was classified as ‘cultural input’ and weighed against ‘objective’ technical criteria. A fisherman from Ngāti Whatua wanting to collect kai moana for a tangi.

The constitutive outsider is not an abstraction. It is populated by actual people, doing actual work, bearing actual consequences.

X.

There is another way to read the Tribunal archive. Not only as a diagnosis but as an obligation.

The right to be governed well is not merely a philosophical abstraction debated in seminars. In Aotearoa, it is a foundational Te Tiriti promise.

In exchange for the right to establish government, the Crown undertook a reciprocal duty: to govern competently. This was not a blank cheque. It was a negotiated settlement. Kāwanatanga was permitted on the condition that it would deliver the benefits of a functional, fair, and effective public sector, while actively protecting the continued exercise of rangatiratanga guaranteed under Article Two.

The promise was not rule by the majority, or rule by the so-called knowledgeable. It was a relationship. Kāwanatanga exercised with integrity, alongside rangatiratanga exercised without interference. Moderated, perhaps, by the promise that whānau would enjoy equal access, the same outcomes, opportunities to participate, and public services that met their needs.

Yet there is a pervasive tendency in contemporary discourse for officials and commentators to fixate on defining rangatiratanga. They treat it as a problem to be solved, a concept to be contained within Crown-approved frameworks. Policy documents proliferate with attempts to specify its boundaries, limits, and proper scope.

This is, I think, a profound misdirection of intellectual and political energy. I would rather officials stayed in their lane. Stopped trying to define Te Ao Māori concepts for the Crown’s convenience. Left those matters to Te Ao Māori institutions themselves.

The urgent work is not to define the scope of Māori authority for Te Ao Māori. The urgent work is to define and deliver on the Crown’s own promise. What does good government actually look like in practice?

I am often criticised, especially by the extreme left and extreme right, for being a technocrat. Frankly, all I want is a state focused relentlessly on its practical business and holding its tongue when it comes to matters that are for Māori institutions to decide when they are ready. The state’s job is to ensure equitable access to services. To co-produce measurable improvements in outcomes. To create genuine pathways for participation. To insist on the quality of the state’s engagement with all its citizens. And to be accountable for all of the above.

The endless debates by officials about what rangatiratanga is and is not are a distraction from the Crown’s own unfulfilled obligations. Rangatiratanga will be whatever the specific Te Ao Māori institution decides it will be. The Crown’s best first choice is to stay silent on the matter and focus instead on its Article One and Article Three obligations.

Seen in this light, the five patterns of failure are not merely administrative shortcomings. They represent a systemic and ongoing breach of that foundational promise. When the state’s machinery cannot hear a constitutional argument, it is not delivering good government. When it displaces relational knowledge with its own narrow expertise, it is not governing competently. When it absorbs challenges through performative change while preserving its operational architecture, it is not acting in good faith.

It is governing in a way that severs the very relationship that grants it legitimacy.

XI.

If the problem is role clarity and institutional confusion, why do so many proposed solutions focus on process?

The turn towards co-design as partnership appears, on the surface, to offer an answer. It emerges from reasonable premises: that policy made without those it affects is likely to fail; that democratic legitimacy requires more than periodic elections; that expertise is distributed, not concentrated in Wellington. It offers a language of collaboration, empathy, and shared solutions.

And yet.

The stories I have heard from hapū and whānau who have been through these processes carry a certain architecture. There is the experience of being invited but not resourced: communities expected to provide voluntary labour to legitimate a Crown process, with no koha, no reimbursement, no recognition that their time carries economic weight.

More insidiously, there is the pattern of stories being welcomed but analysis being rejected. ‘They wanted my tears, not my thoughts.’ This is the performance of listening. A voyeuristic extraction of experience that stops short of allowing that experience to inform a fundamental critique of the system itself.

Arnstein’s (1969) ladder of citizen participation identified this dynamic with precision. Tokenism, informing, consulting, and placating occupy the middle rungs. It looks like participation. It feels like engagement. But power does not shift. The decisions that matter are made elsewhere, by the same people who made them before.

The agonistic critique cuts deeper still. Co-design, in its common application, is an exercise in liberal rationalism. It is founded on the belief that if we bring the right people into a room and facilitate a reasonable conversation, a rational consensus will emerge. It attempts to erase conflict and antagonism. It tries to create a harmonious ‘we’ from a situation inherently structured by power and disagreement. On this account, co-design denies the political: that ineradicable dimension of antagonism which shapes collective life (Mouffe, 2005, p. 10).

The concept of ‘cunning statecraft’ captures this dynamic well: the way participatory methods can function as technologies of legitimation, creating the appearance of partnership while leaving the underlying architecture of power untouched (von Busch & Palmås, 2021). Co-design becomes a way of channelling political contest into a managed administrative process, an ‘invited space’ where the state still defines the terms of engagement (Cornwall, 2008).

Specific tensions arise, moreover, when design methodologies developed in one cultural context are applied in Indigenous settings (Akama et al., 2019). The tools themselves are not neutral. They carry assumptions about knowledge, about process, about what counts as a good outcome. Applied unreflexively, they risk perpetuating the very dynamics they claim to overcome.

The relationship between the Crown and Māori is not one of stakeholders collaborating on a project. It is an agonistic relationship between constitutional partners who share a commitment to a polity yet hold fundamentally different interpretations of the principles that should govern it. What Aotearoa offers is the lived demonstration that such arrangements are possible: not resolution, but relationship; not consensus, but the commitment to keep talking, knowing that each conversation concluded simply makes space for the next.

To pretend otherwise is to engage in a fiction.

XII.

So then, what is the alternative?

Before I answer that, I need to be clear about what I am not arguing for.

An agonistic public sector is not a weak state, nor a retreat from kāwanatanga. It does not mean abandoning decision-making authority, nor does it license a form of procedural relativism in which all claims are treated as equally valid and the Crown becomes merely one voice among many.

On the contrary. The argument advanced here is that kāwanatanga has been exercised too narrowly, not too strongly. The state has invested heavily in controlling process, managing risk, and preserving institutional coherence, while neglecting the harder work of governing in conditions of deep constitutional disagreement.

An agonistic public sector does not give up authority; it uses authority differently. It takes responsibility for building and maintaining the institutional conditions under which public policy conflict can be fully expressed, contested, and decided in ways that are legitimate to those affected.

This is not abdication. It is policy craft of a higher order. It requires clearer lines of decision-making, firmer commitments to accountability, and a greater willingness to be judged on outcomes rather than intentions. A state that enables robust contestation is not stepping aside; it is finally doing the work that kāwanatanga promised.

So if co-design is a dead end, if it is ultimately the performance of partnership that avoids the central question of power, how do we build a public sector capable of delivering on the promise of kāwanatanga in a way that honours Te Tiriti?

The answer does not lie in a new methodology, a more refined toolkit, or another machinery of government change. It lies in a fundamental shift in how the state understands its own role within the policy advisory system. Not as a provider of solutions, but as an enabler of contestation.

There is an exemplar, though it is not often read this way.

Wai Tūwhera o te Taiao is a community science programme that uses environmental DNA to monitor freshwater. On the surface, it looks like a technical intervention: citizen science, data collection, capacity building. But something else is happening beneath the surface.

Wai Tūwhera does not seek to manage communities or extract their knowledge. It creates space for citizens to deliberate and regulate one another, including the state itself. It is grounded in mātauranga. It gives communities the tools: the data, the scientific credibility, the communicative power to hold the Crown and other actors to account. It equips them to move from being subjects of regulation to active agents in the regulatory process.

The evaluation of the programme found that it gives communities a ‘generative notion of power’, a real sense of ‘agency and communicative power’ that emboldens them to restart stalled conversations and ask critical questions of councils (DTK and Associates, 2023, p. 24). It fosters a community-based conception of power as a collective force. In the words of participants, it involves ‘the sharing and becoming of something, not just the usual giving of knowledge or responding to the demands of the Crown’ (DTK and Associates, 2023, p. 28).

This is what I would call proper policy and regulatory craft. And it points towards what an agonistic public sector might look like.

Such a state recognises that its primary role is not to achieve consensus but to build the institutional architecture for robust and fair conflict. It understands that disagreement is not a sign of system failure. Disagreement is a vital democratic resource.

The absence of a political frontier, Mouffe (1993, p. 6) observes, far from being a sign of political maturity, is the symptom of a void that can endanger democracy. A well-functioning pluralist democracy needs clearly differentiated positions. It needs the option to choose between real alternatives. It needs, in short, the political.

An agonistic public sector gives up the fantasy of control. It invests in the capacity of its constitutional partners and citizens to be adversaries. It provides communities with the tools to make their own arguments, in their own terms, backed by their own evidence. And it trusts that the collision of these arguments, in a properly constituted agonistic space, will produce better, more resilient, and more legitimate outcomes than any decision made in the quiet corridors of Wellington.

This is not abdication. It is not the abandonment of kāwanatanga. It is the recognition that good government in a pluralistic society means resourcing and enabling the expression of that plurality within the policy advisory system, and ensuring that system is linked to delivery.

Building this agonistic public sector is the great unfinished work of our time.

XIII.

I am aware of the irony.

I am writing this as an outsider who has worked inside the system. I walk through the front door now. I conduct compliance reviews. I write frameworks. I attend meetings where officials discuss how to improve the machinery of advice-giving, and I am paid, sometimes quite well, for my contributions.

Mum would find it strange, I think. Or perhaps not. Perhaps she always knew that the offices she cleaned were not neutral spaces, that the work done there had consequences she would never see, that her own invisibility was a condition of their functioning. She did not need political theory to tell her that every consensus has a constitutive outside.

What I have tried to do, in this essay and in the Waitangi Tribunal series of which it forms a part, is to make visible what the system makes invisible. To read the archive not as history but as diagnosis. To suggest that the failures documented there are not accidents but architecture: the predictable outputs of a machine built for a purpose that was never ours.

A project of radical and plural democracy, Mouffe (1993, p. 152) argues, has to come to terms with the dimension of conflict and antagonism within the political, and has to accept the consequences of the irreducible plurality of values. This is, I think, the work that remains. Not to imagine an Aotearoa in which the tension between kāwanatanga and rangatiratanga has been resolved, but to build institutions capable of holding that tension: staging it, contesting it, transforming it into something generative rather than destructive.

In that work, the focus needs to be on an accountable kāwanatanga, rather than endless debates about the definition of rangatiratanga. For rangatiratanga will be defined by whichever Te Ao Māori institutions choose to sit opposite the state. The role of officials is to determine what kāwanatanga is, and to ensure equity in access, outcomes, participation, and quality.

The Tribunal archive shows us what happens when the state does not do this. It shows us constitutional arguments flattened into regulatory disputes. It shows us knowledge displaced by expertise, silence functioning as policy, recognition offered without redistribution. It shows us, again and again, the consequences of a system that evades the political.

But it also shows us Motunui. It shows us WAI 11. It shows us moments when the architecture cracked, and something else became briefly visible: a different way of being in relation, a politics that did not require one side to disappear.

The question is whether we can build on those cracks. Whether the system can learn not merely to perform change but to enact it. Whether those of us who walk through the front door can do something more than clean up after the decisions have been made.

I do not know the answer. But I think the question is the right one.

He mihi tēnei ki ōku mātua.

Ko kōrua te tīmatanga.

Next Thursday, the Waitangi Tribunal series continues with the next report. We’ll continue to excavate the Tribunal’s contemporary reports to see what else we uncover.

References

Akama, Y., Hagen, P., & Whaanga-Schollum, D. (2019). Problematising replicable design to practise respectful, reciprocal, and relational co-designing with Indigenous people. Design and Culture, 11(3), 277–298. https://doi.org/10.1080/17547075.2019.1571306

Arnstein, S. R. (1969). A ladder of citizen participation. Journal of the American Institute of Planners, 35(4), 216–224. https://doi.org/10.1080/01944366908977225

Cornwall, A. (2008). Unpacking ‘participation’: Models, meanings and practices. Community Development Journal, 43(3), 269–283. https://doi.org/10.1093/cdj/bsn010

DTK and Associates. (2023). Evaluation of Wai Tūwhera o te Taiao. Environmental Protection Authority | Te Mana Rauhī Taiao.

Mouffe, C. (1993). The return of the political. Verso.

Mouffe, C. (2005). On the political. Routledge.

von Busch, O., & Palmås, K. (2021). The corruption of co-design: Political and social conflicts in participatory design thinking. Routledge.