Introduction
The United Nations Declaration of the Rights of Indigenous People (UNDRIP) is a legally non-binding resolution of the United Nations that is used by radicals to support co-governance or partnership in New Zealand between those who identify as Maori and the Crown. It is also the basis of the claim for self-determination by those who identify as Maori. It is seen as the blue print for He Puapua which envisages Maori having a 50 per cent say in the government of New Zealand by 2040.
On the other hand, there are substantial limitations on the more extreme provisions of the Declaration. These were self-imposed when New Zealand signed up to the Declaration through John Key's agency, There are also limitation and restrictions within the document itself - that have not previously been identified - that seriously limit the scope of the Declaration. Perhaps most important is the fact that the document sets out the underlying universal principles of the General Assembly which not only underpin the Declaration and modify any extreme provisions, but form the basis on which all democratic states must be founded.
The full UNDRIP document can be seen here: UNDRIP_E_web.pdf
The following is a factual analysis of UNDRIP.
A non-binding resolution
The United Nations created this non-legally binding resolution as an aspirational document that does not create legal rights.
Not binding in New Zealand law
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 is well-documented and acknowledged. Moriori inhabited New Zealand prior to Maori, and there were reputedly earlier inhabitants.
Article 33
1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.
Helen Clark's Labour government 2007
Implementing the United Nations Declaration on the Rights of Indigenous Peoples | NZCPR Site
Helen Clark as Prime Minister had refused to sign on advice from Crown Law that it was fundamentally incompatible with New Zealand’s constitutional and legal arrangements.At the time, New Zealand was one of only four countries that hadn’t signed – the others were Australia, Canada, and the United States, which also had in place substantial legislative frameworks associated with early inhabitants.
Madam President,
New Zealand is one of the few countries that supported the elaboration of a declaration that promoted and protected the rights of indigenous peoples from the start.
In New Zealand, indigenous rights are of profound importance. They are integral to our identity as a nation State and as a people. New Zealand is unique: a treaty concluded at Waitangi between the Crown and New Zealand's indigenous people in 1840 is a founding document of our country. Today, we have one of the largest and most dynamic indigenous minorities in the world, and the Treaty of Waitangi has acquired great significance in New Zealand's constitutional arrangements, law and government activity.
Madam President, the place of Maori in society, their grievances and the disparities affecting them, are central and enduring features of domestic debate and of government action. Furthermore, New Zealand has an unparalleled system for redress accepted by both indigenous and non-indigenous citizens alike. Nearly 40% of the New Zealand fishing quota is owned by Maori as a result. Claims to over half of New Zealand's land area have been settled.
For these reasons, New Zealand fully supports the principles and aspirations of the Declaration on the Rights of Indigenous Peoples. New Zealand has been implementing most of the standards in this declaration for many years. We share the belief that a Declaration on the rights of indigenous peoples is long overdue, and the concern that, in many parts of the world, indigenous peoples continue to be deprived of basic human rights.
New Zealand is proud, in particular, of our role in improving the text over the past three years with the objective of turning the draft declaration text into one that States would be able to uphold, implement and promote. We worked hard to the very end to narrow our concerns and to be able to support this text, and we appreciate the efforts made by others, not least the Africa Group.
It is therefore a matter of deep regret that we find ourselves unable to support the text before us today. Unfortunately, we have difficulties with a number of provisions in the text. In particular, four provisions in the Declaration are fundamentally incompatible with New Zealand's constitutional and legal arrangements, the Treaty of Waitangi, and the principle of governing for the good of all our citizens. These are Article 26 on lands and resources, Article 28 on redress, and Articles 19 and 32 on a right of veto over the State.
Madame President, the provision on lands and resources cannot be implemented in New Zealand. Article 26 states that indigenous peoples have a right to own, use, develop or control lands and territories that they have traditionally owned, occupied or used. For New Zealand, the entire country is potentially caught within the scope of the Article. The Article appears to require recognition of rights to lands now lawfully owned by other citizens, both indigenous and non-indigenous, and does not take into account the customs, traditions, and land tenure systems of the indigenous peoples concerned. Furthermore, this Article implies that indigenous peoples have rights that others do not have.
In addition, the provisions on redress and compensation, in particular in Article 28, are unworkable in New Zealand, despite the unparalleled and extensive processes that exist under New Zealand law in this regard. Again, the entire country would appear to fall within the scope of the Article and the text generally takes no account of the fact that land may now be occupied or owned legitimately by others or subject to numerous different, or overlapping, indigenous claims. It is impossible for the State in New Zealand to uphold a right to redress and provide compensation for value for the entire country - and indeed financial compensation has generally not been the principal objective of most indigenous groups seeking settlements in New Zealand.
Finally, the Declaration implies that indigenous peoples have a right of veto over a democratic legislature and national resource management, in particular Articles 19 and 32(2). We strongly support the full and active engagement of indigenous peoples in democratic decision-making processes –17% of our Parliament identifies as Maori, compared to 15% of the general population. We also have some of the most extensive consultation mechanisms in the world, where the principles of the Treaty of Waitangi, including the principle of informed consent, are enshrined in resource management law. But these Articles imply different classes of citizenship, where indigenous have a right of veto that other groups or individuals do not have.
Unfortunately, these are not the only provisions that cause us difficulties; for example, we also have concerns about Article 31 concerning intellectual property. But I have focused today on the provisions of central concern to New Zealand.
Madame President, New Zealand takes international human rights and our international human rights obligations seriously. But we are unable to support a text that includes provisions that are so fundamentally incompatible with our democratic processes, our legislation and our constitutional arrangements. These provisions are all discriminatory in the New Zealand context. This text is also clearly unable to be implemented by many States, including most of those voting in favour of its adoption today.
This Declaration is explained by its supporters as being an aspirational document, intended to inspire rather than to have legal effect. New Zealand does not, however, accept that a State can responsibly take such a stance towards a document that purports to declare the contents of the rights of indigenous people. We take the statements in the Declaration very seriously and for that reason have felt compelled to take the position that we do.
Lest there be any doubt, we place on record our firm view that the history of the negotiations on the Declaration and the divided manner in which it has been adopted demonstrate that this text, particularly in the Articles to which I have referred, does not state propositions which are reflected in State practice or which are or will be recognized as general principles of law.
Madam President, in our experience, the promotion and protection of indigenous rights requires a partnership between the State and indigenous peoples that is constructive and harmonious. This is the foundation of New Zealand as a nation State. It is with genuine regret and disappointment, therefore, that New Zealand is unable to support the Declaration on the Rights of Indigenous Peoples and must disassociate itself from this text.
The Articles that Rosemary Banks referred to are as follows:
Article 19
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired…
Article 28
1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent…
Article 32
1. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water, or other resources.
New Zealand adopts UNDRIP
Muriel Newman set out a timeline:
In 2008 the Maori Party made supporting the Declaration a condition of their coalition deal with John Key’s National Party.
Two years later, at 4.45 am New Zealand time on the 20th of April 2010, the Minister of Maori Affairs Dr Pita Sharples announced to the United Nations in New York that New Zealand would support UNDRIP.
Later that day Prime Minister John Key announced to the New Zealand public – who had not been consulted – that the signing had taken place.
It had been a clandestine affair – no-one had been told that Dr Sharples was flying to New York with officials and selected media to sign the agreement. Those involved had been sworn to secrecy.
A press release of 20 April 2010 stated:
National Govt to support UN rights declaration
Prime Minister John Key announced today the New Zealand Government has given its support to the United Nations Declaration on the Rights of Indigenous Peoples.
The decision to support the declaration was conveyed in a speech today by the Minister of Maori Affairs, Dr Pita Sharples, to the United Nations in New York.
"New Zealand has always supported the overall aspirations of the declaration, and we already implement most provisions contained within it," says Mr Key.
The statement in support of the declaration:
- acknowledges that Maori hold a special status as tangata whenua, the indigenous people of New Zealand and have an interest in all policy and legislative matters;
- affirms New Zealand's commitment to the common objectives of the declaration and the Treaty of Waitangi;
- reaffirms the legal and constitutional frameworks that underpin New Zealand's legal system, noting that those existing frameworks define the bounds of New Zealand's engagement with the declaration.
This is reflected in the press release which noted –
- the aspirational spirit of the Declaration and affirms to continually progress these, alongside Maori, within the current legal and constitutional frameworks of New Zealand.
He Puapua
In The End of Democracy Dr Muriel Newman recounts: The End of Democracy | NZCPR Site
In March 2019, Prime Minister Jacinda Ardern authorised the development of a plan to implement the United Nations Declaration on the Rights of Indigenous Peoples.
Taken literally, the Declaration would essentially give control of a nation to those who self-identify as “indigenous” – the ownership of all public and private land, all resources
Taken literally, the Declaration would essentially give control of a nation to those who self-identify as “indigenous” – the ownership of all public and private land, all resources including fresh water, and the power to govern.
In 2008 the Maori Party made supporting the Declaration a condition of their coalition deal with John Key’s National Party. Two years later, the Declaration was secretly signed in New York. National justified their actions and placated opposition by claiming the agreement was not binding on the government, but was instead “symbolic and aspirational”.
Former Waitangi Tribunal Chairman Sir Edward Durie expressed a more prophetic view saying, “I would rank the day that New Zealand gave support to the Declaration, as the most significant day, in advancing Maori rights, since 6th February 1840.”
Without any mandate from New Zealanders, the Ardern Labour Government has decided to turn this symbolic accord into an action plan for our country. Her ultimate goal is to elevate Maori tribal leaders to the status of a ruling aristocracy. Representing 15 percent of the population, they will exercise 50 percent of the Government’s decision-making power and control the vast economic resources that would accompany such a role.
The technical working group appointed by the Prime Minister to develop the implementation plan delivered their report He Puapua on 1 November 2019. Called Vision 2040, it provides a “roadmap” to fully enact the Declaration by 2040 to coincide with the 200th anniversary of the signing of the Treaty of Waitangi.
This plan was not made public by Labour for almost a year – only appearing after the 2020 election. Furthermore, Labour made no mention of their proactive support for the UN Declaration in their election manifesto.
What did UNDRIP really say?
Helen Clark's government clearly identified that some of the articles of the Declaration did not align with some of the principles on which New Zealand's democracy is based. John Key's government signed up to the Declaration, but to the extent that it was "within the current legal and constitutional frameworks of New Zealand".
However there is an article within the Declaration itself which provides that same limitation.
Article 46
Article 46 of UNDRIP includes limitations to ensure that the articles are not used to undermine democracy, respect for human rights, equality, and non-discrimination in a sovereign state.
Article 46
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.
2. In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.
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. (Underlining added)
Preamble to UNDRIP
The Preamble is of huge significance because it is a recital of the underlying purposes and principles on which the General Assembly of the United Nations based the Declaration. UNDRIP_E_web.pdf
United Nations Declaration on the Rights of Indigenous Peoples
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
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.
These underlying purposes and principles of the Declaration have been completely overlooked by those who promote the Declaration as supporting preferential treatment for Maori based on race and ethnic origins. On the contrary, the Declaration is based on the principles that indigenous people are equal to all other peoples, and the diversity of all peoples contributes to the diversity of humankind.
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.
That applies
to situations where a dominant race is given special or superior treatment, and
also where a minority race is given superior or non-equal treatment based on
race or ethnicity.
Summary
The Declaration is not binding on the New Zealand government in domestic law or international law. It is aspirational only and its loose wording purports to infringe on the fundamental democratic rights of sovereign states.
However, rather than being manipulated to justify “co-governance” based on ethnicity, in Article 46 and in its underlying principles in the Annex, the Declaration reinforces the requirement for sovereign states to treat all peoples as equals and to have no preferential treatment based on race, ethnicity or any other matter.
The final word is given to the United Nations’ affirmation in the Annex of the Declaration, referred to above. It should be adopted as the guiding principle for the future of New Zealand as a democratic, multicultural sovereign state:
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.
https://breakingviewsnz.blogspot.com/2023/09/john-robinson-statement-that-negates.html
