Gary Judd KC: India FTA - The Sting Beneath the Sting

Cabinet Said Stop. The India FTA Says Go

In The Sting in the India Trade Deal A Constitutional Trojan Horse: advancing change through political stealth, I examined the inclusion of clause 13.2.2a in the India FTA. That clause states:

2. The Parties, subject to their respective reservations, affirm the following:

a. the United Nations Declaration on the Rights of Indigenous Peoples, adopted in New York on 13 September 2007 and their respective positions made on that Declaration.

I subsequently lodged a submission to Parliament’s Foreign Affairs, Defence and Trade Committee. I am to make an oral submission in support at 8:20 am next Tuesday, 4 June. Hobson’s Pledge also lodged a submission which substantially relied on The Sting I have agreed to their request that I appear as counsel for them in their slot at 9:30 am that day.

I have undertaken further research. It reveals that the situation is worse than first appeared.

The two previous FTAs, the UK (clause 26.3) and the EU (clause 20.3), recorded that the parties “note” UNDRIP and “further note” New Zealand’s position on UNDRIP.

The India agreement changes “note” to “affirm” in respect of both UNDRIP itself and New Zealand’s position. As I noted in The Sting, that is a significant escalation.

I failed to pay sufficient attention to the reference to New Zealand’s position which has now also been ‘affirmed.’

Regarding UNDRIP, NZ’s position is that advised to the UN. Our position in international law is also as advised to the UN.

In 2007, NZ’s position was opposition to UNDRIP. In 2010, our position changed. The Key government sent Minister Pita Sharples to tell the UN we now supported it. Commenting on what he told the UN, Sharples said:

“It reflects well on the relationship between the National and Maori Parties that this Government has been able to endorse this important declaration.“

The latest statement to the UN of New Zealand’s position was Expert Mechanism on the Rights of Indigenous Peoples: New Zealand National Statement on 21 July 2023:

Aotearoa New Zealand is committed to upholding the rights affirmed in the Declaration. The right to self-determination – a cornerstone of UNDRIP – can only be achieved if Indigenous Peoples can effectively participate in decision making processes that affect them, including at the United Nations.

As part of the same agenda, New Zealand also said:

Overview of country engagement mission

* The mission took place in April 2019. The purpose of the country engagement was to provide:

o Advice to support the drafting of a plan to achieve the ends of the United Nations Declaration on the Rights of Indigenous Peoples in Aotearoa New Zealand; and

o advice on an appropriate engagement strategy to identify how Māori will partner in developing and implementing a plan.

By 2023, the NZ position had moved from endorsing UNDRIP to a commitment “to upholding the rights affirmed in the Declaration,” and seeking advice “to support the drafting of a plan to achieve the ends of UNDRIP in Aotearoa New Zealand.” Non-binding aspirations morphed into affirmed rights. New Zealand regarded self-determination as a cornerstone of UNDRIP, and it meant participation in decision making.

As the New Zealanders who claim indigenous status are Maori and governmental decisions affect all New Zealanders including Maori, this means the New Zealand position had become one where Maori should have the right to participate in all or most decision making. That is co-governance between a democratically elected government for all New Zealanders and Maori. Maori protocols ensure they are represented by an essentially self-selected elite.

There has not been a statement of New Zealand’s position since July 2023. We may have thought that New Zealand’s position changed with the formation of the coalition government at the end of 2023, but it didn’t.

Under the heading Equal Citizenship, the NZ First coalition agreement stated:

The Coalition Government will reverse measures taken in recent years which have eroded the principle of equal citizenship, specifically we will: …

Confirm that the Coalition Government does not recognise the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as having any binding legal effect on New Zealand.

Has that happened? No, it has not. Cabinet considered UNDRIP late 2023 or early 2024. I cannot find a link to a Cabinet paper or decision but Te Puni Kokiri’s website advises:

UN Declaration on the Rights of Indigenous Peoples

The New Zealand government announced its support for the Declaration in April 2010 at the United Nations. In 2021-2022, Te Puni Kōkiri, Pou Tikanga representatives of the National Iwi Chairs Forum and the Human Rights Commission implemented a targeted engagement with tangata whenua to identify potential actions to include in a draft plan to implement the Declaration.

In December 2022, Cabinet put the development of a plan on hold and in July 2024, te Minita Whanaketanga Māori [the Minister of Maori Development] confirmed that the Government was no longer progressing a Declaration plan.

Whilst that was a welcome development, it did not change New Zealand’s position. All it does is pause UNDRIP’s implementation. As a matter of New Zealand’s state of record with the UN and in international law, our position remains one of commitment to UNDRIP and to its implementation.

Now we come again to clause 13.2.2 a. of the India FTA. The officials who included this provision, and the Minister who signed the FTA have defied Cabinet’s decision to halt implementation, for now a treaty (an instrument of international law) has been signed in which New Zealand has moved from merely noting UNDRIP and New Zealand’s position to affirming both.

The government has not merely failed to confirm that New Zealand “does not recognise … UNDRIP as having any binding legal effect on New Zealand,” but by the affirmations of the declaration and New Zealand’s position, has confirmed that UNDRIP has binding status (for that’s the meaning of affirm in legal parlance) with a double whammy by confirming New Zealand’s position when that position at the UN and in international law is the July 2023 position.

The Minister and MFAT officials may try to justify themselves by claiming that New Zealand saying in an international agreement that it is bound by UNDRIP and committed to upholding the rights contained in it is not the same as acknowledging that it has binding effect in New Zealand but that is sophistry which will not wash.

For reasons given in The Sting, there is little doubt that the courts will take the affirmations for what they plainly are: New Zealand’s acceptance that UNDRIP is binding such that its principles may be utilised in the interpretation of legislation and as influencing the common law.

I am reasonably confident that will not have been the government’s intention, but it is the situation which has been created.

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.