Point of Order: Let’s recall how NZ was surprised by signing of indigenous rights declaration – and how Mahuta criticised the Key govt’s secrecy

Announcing the completion of the first stage of the two-step engagement process to develop “a Declaration Plan”, Willie Jackson acknowledged the work was being done through race-tinted glasses.

Almost 70 “targeted engagement workshops” had been held mainly online, the Minister for Māori Development said.

“Māori rōpū represented diverse groups ranging from iwi, hapū, tāngata whaikaha Māori (disability community) and rangatahi, to groups interested in health, education, and the environment.

“There were 12 key themes from the Māori targeted engagement covering areas such as rangatiratanga, participation in government, equity and fairness. It ran from Sept 2021 to Feb 2022 and some engagement is ongoing. You can read the full report and other resources here.”

The drafting of the Declaration Plan would now begin in partnership with the National Iwi Chairs Forum’s Pou Tikanga and the Human Rights Commission

“… before being shared for public consultation later this year”.

Under the Government’s discriminatory consultation timetable, and at long last…

“All New Zealanders will get the chance to comment on the range of actions proposed in the draft Declaration Plan.”

And so the leaders of one ethnic group representing 17 per cent of the population, have been enabled over several months to give the Government a wish list which now is being curated by officials before being presented for discussion by the whole population.

Questioning anything on the wish list at that stage is bound to be countered by angry charges of racism.

Towards the end of his press statement, Jackson brought a heavily truncated version of the history of “the Declaration” into play:

“The United Nations Declaration on the Rights of Indigenous Peoples was adopted in 2007 and supported by NZ in 2010. It includes a broad range of rights and freedoms. NZ is committed to improving Māori outcomes and is developing a Declaration plan to measure our progress in addressing Indigenous rights here. Read more on the Te Puni Kōkiri website.”

Jackson didn’t elaborate. Otherwise he would – or should – have been obliged to explain why New Zealand was one of four countries that would not sign the Declaration of Rights of Indigenous Peoples in 2007.

Prime Minister Helen Clark, heading a Labour-led Government, at that time was guided by Crown Law advice that the declaration was fundamentally incompatible with New Zealand’s constitutional and legal arrangements.

She was troubled that UNDRIP’s 46 articles (see HERE) confer special rights on indigenous people that give them a higher status than all other citizens.

These include the right to “self-determination” and separate self-rule, through their own political, economic, legal, social and cultural systems and separate education, health and housing (all funded by the state), entitlement to virtually all of New Zealand’s land and resources, and the right of veto over the actions of the Government.

The definition of “indigenous” person under Article 33 is a matter of self-identification:

“Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.”

In an address to the United Nations on 13 September 2007, Rosemary Banks, New Zealand’s Permanent Representative to the United Nations, outlined why New Zealand would not sign the Declaration.

She said:

“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.”

New Zealand’s objections to Article 26, for example,

“…implies that indigenous peoples have rights that others do not have.”

And:

“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.”

A few years later John Key’s National-led Government, influenced by the politicking required to nurture and sustain its coalition arrangement with the Māori Party, over-ruled the Crown Law advice given to Clark.

On April 20 2010, Māori Affairs Minister Pita Sharples (co-leader of the Māori Party) announced to the United Nations in New York that New Zealand would support UNDRIP.

Prime Minister John Key that day surprised the New Zealand public – who had not been consulted – by announcing the signing.

He said the declaration:

* acknowledges that Māori 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; and

* 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.

Much was made of the declaration being nothing more than aspirational.

Key’s press statement described it as a statement by the UN General Assembly about matters it considers to be significant.

“A Declaration is an expression of aspiration. Unlike a treaty or covenant, a Declaration is not legally binding.”

Explaining his Government’s decision, Key acknowledged that previous governments had considered certain elements of the Declaration, particularly principles advocating prior and informed consent of indigenous peoples in decision-making and full reparation or restitution for wrongfully taken land and resources, to be inconsistent with New Zealand’s domestic arrangements and democratic processes.

“This Government has reviewed New Zealand’s position on the Declaration. The statement of support acknowledges these areas are difficult and challenging but notes the aspirational spirit of the Declaration and affirms to continually progress these, alongside Māori, within the current legal and constitutional frameworks of New Zealand.”

But the public were kept in the dark about Sharples flying to New York with officials and selected media to sign the agreement.

New Zealand First’s leader Winston Peters at that time expressed concerns about the Declaration:

“The United Nations Indigenous Peoples Declaration was signed in the dead of night at the UN in New York. The people were never consulted. This declaration says that in a dispute over New Zealand laws, some New Zealanders’ rights over-ride the rights of others. And in time, this is going to be written into our laws. This is the final step on the road to separatism. This is the road to Zimbabwe.”

Labour MPs challenged the Government’s stealth, too.

They included the member for Hauraki-Waikato, Nanaia Mahuta, who reiterated that in 2007 the Labour Government had been unable to sign the declaration.

“We believed that it deserved to receive more than a lip-service approach. In particular, there were inconsistencies between the text and New Zealand’s constitutional and legal framework that would be difficult to overturn while retaining the fabric of what our society is working towards.”

Moreover, she said:

“If the National Government is serious about this declaration and about realising its aspirations, then why has it been signed under a veil of secrecy?”

And:

“… why have New Zealanders been prevented from participating in a debate on an issue that has a profound impact on the future that we see for this country? Why is the Prime Minister not making this announcement in the House?”

But Mahuta also noted how the Government had taken care to recognise that the document

“… is aspirational and non-binding, an approach that should weigh heavily on the efforts of those people who wanted the declaration to be a strong platform for the continued assertion of indigenous rights.”

She said – or forewarned, as things have turned out now she and the Ardern Government are calling the shots – that the declaration deserved to receive more than a lip-service approach.

In his speech to Parliament, ACT Leader and coalition partner Rodney Hide said he was shocked and appalled at the Government commitment.

The signing was a breach of ACT’s “no surprises” agreement with the Government and afforded Māori rights and privileges not enjoyed by other New Zealanders.

But according to the same Stuff report, Key was adamant New Zealand’s endorsement of a declaration on indigenous rights would not change “our fundamental laws or constitution”. Endorsing the declaration was more symbolic than anything else because New Zealand laws took precedence.

As for shrouding the declaration in secrecy, Key said the decision to keep quiet in advance about Sharples’ trip to New York was out of respect for him. He did not want to steal Sharples’ thunder.

That thunder included Sharples telling the UN:

“Māori hold a distinct and special status as the indigenous people, or tangata whenua, of New Zealand. Indigenous rights and indigenous culture are of profound importance to New Zealand and fundamental to our identity as a nation.

“A unique feature of our constitutional arrangements is the Treaty of Waitangi, signed by representatives of the Crown and Māori in 1840. It is a founding document of New Zealand and marks the beginning of our rich cultural heritage.

“The Treaty establishes a foundation of partnership, mutual respect, co-operation and good faith between Māori and the Crown. It holds great importance in our laws, our constitutional arrangements and the work of successive governments.”

But this was the thin edge of the wedge.

At Waitangi Day in 2011, Sharples took issue with critics who said the declaration was only symbolic and was qualified by being subject to New Zealand domestic law – and so on.

“However, this taniwha will develop over time – as have all the most enduring changes for our people happened, in small steps. Nonetheless, as customary and tikanga jurisprudence develops over time the Declaration will provide another tool for Māori to assert their rights. Our rights as tangata whenua, and first peoples of this land.”

When the country finally gets a chance to examine it, the “Declaration Plan” which the Government has been shaping with Māori advice will give other citizens an idea of how effectively this tool has been wielded and to what extent some citizens are to be privileged because they are “special”.

Point of Order is a blog focused on politics and the economy run by veteran newspaper reporters Bob Edlin and Ian Templeton.