He Puapua is the secret proposal for Maori self-determination that was kept from Winston Peters when New Zealand First was in coalition with Jacinda Ardern’s government.
The He
Puapua report of 2020 was subtitled: REPORT
OF THE WORKING GROUP ON A PLAN TO REALISE THE UN DECLARATION ON THE RIGHTS OF
INDIGENOUS PEOPLES IN AOTEAROA/NEW ZEALAND.
It described
itself as “a roadmap to achieve a Vision
2040”, which is the bicentenary of the signing of the Treaty. By that date it is proposed that Maori will have
achieved self-determination, or rangatiratanga Maori, as the indigenous people
of New Zealand.
He Puapua and the Waitangi Tribunal
This self-determination under He Puapua also derives from “te Tiriti o Waitangi guarantee to Maori chiefs of their ongoing rangatiratanga, protection of taonga and, and the Crown kāwanatanga, or governance over non-Māori settlers”.
This is a reference to the Waitangi Tribunal’s Stage 1 report on the Te Raki claim of 2014 where the Tribunal interpreted article 1 of the Treaty as granting the Crown kawanatanga over the settlers with the chiefs retained tino rangatiratanga over Maori under article 2. Issues that arose where the two separate governments intersected were to be resolved on a case by case basis.
Fallacy of the Waitangi Tribunal
The Waitangi Tribunal is not a court of law and its findings are not binding in any way. The views that it expressed in 2014 in the Stage 1 Te Raki report about articles 1 and 2 of the Treaty setting up a type of apartheid state were never adopted by the government.
More importantly, in the Stage 2 Te Raki report of December 2022 the Tribunal acknowledged and accepted that the British Crown, through Lieutenant-Governor Hobson, legally asserted full sovereignty over New Zealand in 1840. Any arrangement in relation to shared sovereignty in the Treaty was therefore superseded.
That acknowledgement of the Tribunal was made in December 2022, two years after He Puapua was released. With the courts of New Zealand and the Waitangi Tribunal now agreeing that full sovereignty of New Zealand was asserted by the Crown in 1840 there is no legal basis, or any other basis, for any assertion that the Crown’s absolute sovereignty is diminished by any arrangement of shared governance.
Constitution Act 1986
If there remains any doubt about the absolute sovereignty of the New Zealand Crown, the subsequent constitution acts removed that doubt.
The New Zealand Constitution Act 1852 set up a representative constitution for the colony of New Zealand with Queen Victoria as its head of state.
Under section 11: A member of Parliament shall not be permitted to sit or vote in the House of Representatives until that member has taken the Oath of Allegiance in the form prescribed in section 17 of the Oaths and Declarations Act 1957.
I, [John Doe], swear that I will be faithful and bear true allegiance [His Majesty King Charles the Third], His heirs and successors, according to law. So help me God.
See: Constitution Act 1986 No 114 (as at 17 May 2005), Public Act Contents – New Zealand Legislation
Following the 2023 election all newly elected MPs will be obliged to swear the oath of allegiance to King Charles the Third.
In short, in law, absolute sovereignty is vested in the Crown. There can be no shared government of any sort.
UNITED NATIONS DECLARATION OF THE RIGHTS OF INDIGENOUS PEOPLE
The nature of UNDRIP
It is an aspirational document that does not create legal rights. It is a declaration not a treaty and is not binding in law. Even if it were a treaty, it would not be enforceable in New Zealand law unless Parliament incorporated its obligations and rights in legislation. That has not happened.
Indigenous people
Maori are not “indigenous” (from the old Latin: “born of the land”) to New Zealand. Their arrival in New Zealand in about the 13th century from Hawai-iki is well-documented and acknowledged. Moriori inhabited New Zealand prior to Maori, and there were reputedly earlier inhabitants.
Article 46: Political unity of sovereign states
This is the last article of the Declaration and serves to limit the application of the previous articles. It has three parts. Part 1 states:
1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.
New Zealand is a sovereign state. Nothing in UNDRIP can dismember or impair, totally or in part, its territorial integrity or political unity.
Principles of justice and human rights
Part 3 of article 46 states:
3. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.
Those principles limit the application of the Declaration. In other words there can be no preferential treatment for Maori, or anyone else, based on race or ethnicity.
Preamble to the Declaration
Just as clause 46 limited the application of the Declaration, the Preamble to the Declaration sets out the underlying principles and purposes of the Declaration: It includes the following affirmations:
The General Assembly,
Guided by the purposes and principles of the Charter of the United Nations, and good faith in the fulfilment of the obligations assumed by States in accordance with the Charter.
Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such,
Affirming also that all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind,
While affirming the equality of indigenous peoples, the Declaration goes on in the final paragraph of the Preamble to make it clear beyond any doubt that all such rights are limited by the fundamental principle that there should be no preferential treatment for anyone:
Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.
UNDRIP is not a source of separate rights based on ethnicity as He Puapua claims but a plea for the equality of all peoples and races in a democracy where they are free to celebrate their cultures and their differences, but without any preferential treatment based on race or heritage.
New Zealand legislation
Those fundamental principles are reflected in the New Zealand Bill of Rights Act 1991:
19(1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.
The prohibited grounds for discrimination In the Human Rights Act are:
21 (1) For the purposes of this Act, the prohibited grounds of discrimination are—
(f) race:
(g) ethnic or national origins, which includes nationality or citizenship:
______________
