NZCPR Newsletter: UNDRIP Disaster

At 4.45 am New Zealand time on 20 April 2010, then Minister of Maori Affairs, Maori Party co-leader Dr Pita Sharples, announced to the United Nations in New York that New Zealand would support the UN’s Declaration on the Rights of Indigenous Peoples (UNDRIP).

The whole thing had been a clandestine affair. No-one had been told Dr Sharples was flying to New York to sign UNDRIP. Everyone involved had been sworn to secrecy.

National’s support of the Declaration was highly controversial. Labour Prime Minister Helen Clark had refused to sign in 2007, 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 had refused to sign – the others were Australia, Canada, and the United States.  

The reality is that the 46 Articles of UNDRIP are profoundly discriminatory. They confer special rights on indigenous people that elevates their status above that of all other citizens. They promote radical self-rule, not only through separate state-funded services such as education, health, and housing, but also through the right to virtually all of a country’s land and resources, the right to on-going compensation, and the right of veto over the actions of Government.

The highly contested issue of defining who is ‘indigenous’ is conveniently resolved by allowing self-identification: “Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.”

In fact, the whole Declaration is at such odds with the concept of New Zealand as a modern democratic nation that it is difficult to understand how John Key’s National-led Government could have ever agreed to sign.

All four countries that voted against UNDRIP in 2007 eventually caved in: Australia in April 2009, New Zealand in April 2010, Canada in November 2010, and the US in December 2010.

While all four countries initially claimed their signing was “symbolic”, both New Zealand and Canada later moved to give UNDRIP legal force.

In New Zealand’s case it was Jacinda Ardern’s Labour-led Government that went down this path, with the Minister of Maori Development Nanaia Mahuta gaining Cabinet approval to develop an implementation strategy in March 2019.  

A working group led by iwi leaders was established and their UNDRIP plan was delivered to the Minister in August 2019. Called He Puapua, this radical blueprint to replace democracy with tribal rule by 2040 – the 200th anniversary of the signing of the Treaty of Waitangi – specifically included enlarging the tribal estate through the “acquisition of private land”, introducing tikanga into the common law to gain control of the legal system, and “strengthening legal recognition of the Treaty” through the consistent use of a “stronger Treaty clause” – which is, of course, Te Tiriti.

Aware of the political volatility of He Puapua, Labour not only kept it secret from the public until after the 2020 election, but also from their New Zealand First coalition partner – even as their separatist agenda was quietly rolled out under cover of the Covid pandemic.

Once He Puapua was revealed by the NZCPR in early 2021, the public backlash became so intense, that although the framework for tribal rule continued to be embedded in our legislative and regulatory framework, Labour backed off full implementation.

Canada was not so lucky.

Under Prime Minister Justin Trudeau, UNDRIP was passed into federal law in June 2021, with a preliminary 181 measures agreed in an on-going and ever-evolving Action Plan. 

British Columbia went even further with provincial leaders deciding to implement their own Declaration on the Rights of Indigenous Peoples Act in November 2019.

Given our Coalition has not dismantled the He Puapua framework that was put in place, Labour’s re-election next year could easily see it revived with outcomes that parallel British Columbia. So, what can we learn from their experience?

Canadian journalist Elizabeth Nickson pulls no punches as she describes their dire situation:

“Thanks to my province – British Columbia – being the first in the world to formally recognize the United Nations Declarations on Indigenous People, we have elevated indigenous rights above everyone and everything else…

“After 500 tortuous days in court, the longest court case in Canadian history, the Cowichan tribe has been given a hunk of land, worth several hundred million dollars, filled with houses, businesses, industrial production, smack in the middle of a booming urban centre.

“The next day, one bank pulled a hundred-million-dollar loan for one business, and a property owner – a blueberry farmer – who has owned his land since the 1970’s had his mortgage renewal turned down.

“Yesterday, an Indian band claimed the entire city of Kamloops and lodged suit. Expect the rest of the province to be so treated. We have no idea how many more of these suits lie in waiting. The taxpayer pays for all of it. Every cent. Both sides of the case. And the public had no representation in the case. The government didn’t fight.

“You own land here, buster? Oh no, you don’t. The hundreds of thousands you have paid in mortgage, the tens of thousands you earned over a decade or more of saving and brutal hard work? VOID!!!!! All the improvements? NOT YOURS!!!!

“The judge in the case is essentially stating that since 110% of British Columbia has been claimed by one tribe or other, all property rights in British Columbia could be cancelled…

“We have been assaulted by the breakage of the most fundamental element of our prosperity – property rights.”

In New Zealand, tribal leaders have already persuaded two Parliamentary parties to support their plan to claim private land.

The Maori Party’s 2023 election manifesto promised: “Te Pāti Maori will introduce a first right of refusal policy for mana whenua on all private land. When land is put up for sale, it must first be offered to recognised mana whenua of that land. This policy has the power to revolutionise Maori social, economic, and environmental outcomes.”

Such a policy would indeed be revolutionary: it would destroy private property rights in New Zealand by collapsing the value of any land of interest to claimant groups.

The Green Party also campaigned on opening up private land for tribal claims: “We will remove the 2008 deadline to lodge new Treaty claims and reinstate the ability for the Waitangi Tribunal to make recommendations in relation to privately owned land, as that land comes on the property market.”

Imagine the nightmare of the Greens in power, re-opening Treaty settlements so the country’s powerful tribal corporations can target private property.

What this means is that if there’s a change in government next year – since both of Labour’s coalition partners want to open up private land for tribal claims – this will likely become New Zealand’s reality.

And while Labour hasn’t yet released its Treaty policy, it too is planning to attack private property rights – but through the tax system, since once a capital gains tax is in place, it can be weaponised to capture the family home through the stroke of a pen.

This week’s NZCPR Guest Commentator, former Judge and Law Lecturer Anthony Willy highlights how the judiciary is progressing He Puapua by incorporating tikanga into the common law without any public mandate whatsoever:

“In a recent article Law News published the text of a lecture given by Justice Christian Whata entitled ‘Embracing tikanga implications for New Zealand law.’ He begins by saying that tikanga maori is not merely a collection of customs, it represents a robust jural system complete with its own norms and procedures…

“He cites the example of property law saying that the ‘assumption of sovereignty has not erased customary land rights’ and that ‘the incorporation of tikanga maori into the mainstream New Zealand legal system reflects a broader societal shift towards recognising maori legal traditions as an integral component of our national identity’.”

Appointed to the High Court by National in 2011 and to the Court of Appeal in 2024, Justice Whata is pressing for a “bijural” legal system that would give tikanga Maori equal standing alongside the common law.

But if the Marine and Coastal Area Act – which incorporates both tikanga and common law rights – is anything to go by, what Justice Whata is proposing is a travesty of justice where Maori custom over-rides private property rights every time.

The disastrous result can again be seen in the Marine and Coastal Area Act experience, where the “pockets” of customary rights in “discrete” areas of the foreshore and seabed that the 2003 Court of Appeal determined might still exist, have been expanded through tikanga to effectively encompass the entire New Zealand coastline.

While the Coalition has stepped in to ‘fix’ that law, Labour has promised to repeal their amendment, which means that if there’s a change in government next year, New Zealand’s entire coastline will end up under radical tribal control.

Justice Whata now intends applying the same arguments being used to deliver the coast to Maori, to private land.

In other words, activist judges – including the Court of Appeal’s Justice Christian Whata and the Supreme Court’s Justice Joe Williams – are using tikanga to hijack the justice system and over-ride common law property rights with customary rights in order to deliver control of private property in New Zealand to Maori.

What this means is that as long as “tikanga” remains in the law, private property in New Zealand is no longer secure.

To remedy this travesty and protect the Rule of Law and private property rights, not only must tikanga be removed from the law, but so too must ‘special’ tribal consultation rights, which have now morphed into veto rights and blackmail on a grand scale.

If this does not happen – if both tikanga and tribal consultation rights are not removed – neither the Rule of Law, nor property rights will be secure in New Zealand.

This does not bode well for a country desperate for foreign investment – as Canada is now finding to their cost.

Richard Ciano from Vancouver based Yorkville Strategies describes the chaos:

“Investors seek clear title and dependable contracts. Canada is increasingly delivering the opposite. Investors don’t witness stability — they witness a fractured federation, a weaponized bureaucracy, and a legal system that injects profound uncertainty into the most basic elements of capitalism, like property rights.

“Consider the devastating BC Supreme Court decision in Cowichan Tribes v. Canada. The court’s declaration recognized Aboriginal title to land underlying private properties in a large, developed area of Richmond.

“This decision didn’t expropriate the land, but it accomplished something almost as destructive to investor confidence: it shattered the entire land tenure system. Landowners and businesses now confront a destabilized legal framework where the very ownership of their land hangs in question. This isn’t theoretical risk — it’s a judicial earthquake that injects massive uncertainty into property rights, the absolute bedrock of a stable, investable economy.”

Unless the Coalition removes the millstone of tribal influence that is now undermining progress and destroying prosperity in New Zealand, this could well be our future.

Richard further states: “The duty to consult with Indigenous groups, has been perverted into a process with no clear timeline, no off-ramp, and no point of finality. It has become a recipe for indefinite paralysis.”

Isn’t this essentially the same situation that we are confronting in New Zealand, where progress is being denied by billion-dollar tribal corporations blocking development and demanding ever-more-lucrative payouts?

Having seen the disastrous influence of UNDRIP in Canada, the continued existence of the He Puapua framework that Labour put in place to implement the Declaration in New Zealand represents an existential threat to our future.

It’s time the Coalition fixed this problem by removing all references to race and culture from our Statutes. It’s what they need to do to ensure they are re-elected in October next year.

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Dr Muriel Newman established the New Zealand Centre for Political Research as a public policy think tank in 2005 after nine years as a Member of Parliament. The NZCPR website is HERE. We also run this Breaking Views Blog and our NZCPR Facebook Group HERE.