In fact, it is turning into a whodunnit as political sleuths try to figure out when the clause was introduced, who put it there, and who wanted it included. They have been forced to try to join the dots and speculate due to the government’s inability — or unwillingness — to offer a convincing explanation.
It will undoubtedly be a point of heated contention as the Foreign Affairs, Defence and Trade Committee examines the treaty — which was signed in New Delhi in April — before it goes to Parliament for ratification.
National’s Minister for Trade and Investment, Todd McClay, has said he is unaware of how it got there. Despite being the lead political negotiator, he appeared extremely flustered in an interview on The Platform. When Sean Plunket demanded to know, “Who put that [clause] in there?” he could only say he would “go back and have a look at the negotiations”.
While the UNDRIP clause is not directly binding on New Zealand’s domestic law, it is contentious mainly because of the wider implications of it being “affirmed” in a treaty.
Parliament’s website says: “Courts tend to presume that legislation and the common law should be interpreted and applied in a way that is consistent with international law.”
Or, to state it more bluntly, ratifying the reference to UNDRIP opens up the possibility of activist lawyers and judges deciding that both New Zealand’s Parliament and government strongly support and agree with its principles and that they can therefore be used to guide the formation of law and policy.
UNDRIP, of course, is not simply an “expression of aspiration” as John Key claimed when his Minister of Maori Affairs, Dr Pita Sharples, unexpectedly went to New York in 2010 to announce New Zealand’s support at the UN.
As Gary Judd, KC, wrote on his Substack this month: “UNDRIP is not just an abstract international statement. It became the foundation for He Puapua… [which is] a blueprint for major constitutional change, including forms of co-governance…”
Commissioned by Jacinda Ardern’s government in 2019, He Puapua presents a detailed roadmap for establishing a parallel Māori state that would radically reshape the nation along racial lines.
Judd suspects the UNDRIP clause was “inserted to advance a domestic political project under cover of trade policy”.
“Whether that happened through ideological zeal within the bureaucracy or through deliberate ministerial choice, the effect is the same: Parliament is being asked to approve a trade treaty carrying constitutional freight that has never been honestly put to the public.”
Last week, when The Platform’s Michael Laws asked David Seymour, “How the hell did that [clause] get in there?”, he suggested it was likely to have been the mandarins in MFAT who were responsible rather than Todd McClay himself.
“The Ministry of Foreign Affairs... have a specific Māori partnership organisation... They have gone about inserting this, in spite of the minister, I suspect.”
No matter how and when the clause was introduced, both National and Act appear to have been caught completely off-guard by the sudden rush of criticism.
In a response on May 20 to an inquiry from Don Brash of Hobson’s Pledge, McClay noted that UNDRIP was “first included in the United Kingdom and European Union FTAs”, signed in 2022 and 2023 respectively.
But this attempt to soothe Brash’s concern glosses over reality. The UK-NZ and EU-NZ agreements didn’t go further than to “note” that New Zealand and the UK hold “positions” with regard to the Declaration. The India-NZ treaty, however, “affirms” New Zealand’s commitment to UNDRIP, which is a significant shift.
“Noting” does not imply approval; it simply acknowledges UNDRIP’s existence. “Affirming” explicitly signals strong political agreement with, and commitment to, the text of UNDRIP, along with our respective national positions.
What will astonish — and anger — many centre-right voters is that, despite National being elected in 2023 in large part to eradicate co-governance, it has not only strengthened the language referring to UNDRIP but McClay is attempting to downplay its significance.
The intense scrutiny is obviously discombobulating for National, but also for Act, which has promised to join National and Labour in ratifying the agreement when it comes before Parliament. Many of its supporters will view endorsing an affirmation of UNDRIP as totally incompatible with its stand against co-governance — notably pursued by the Treaty Principles Bill.
In his email to Brash, McClay tried to allay fears that the clause might open a Pandora’s box of legal consequences:
“I asked my officials to review the references to UNDRIP in a number of chapters in New Zealand’s recent trade agreements including the NZ-India FTA and, in all cases, any references to UNDRIP do not impose and are not intended to impose any obligations on New Zealand law or government policy…”
Nevertheless, he seemed to grasp that such an assurance might not entirely win over his critics. He promised to do better: “Following the review, I have directed that UNDRIP should not be included in future FTAs unless it might be necessary as part of the negotiations process. However, this would be a decision for ministers and would not change the fact that UNDRIP is not legally binding.”
Again, McClay is glossing over the fact that once UNDRIP is affirmed in a binding international treaty, the courts can harness it to guide domestic law.
A far more satisfying solution than offering a good behaviour bond in future negotiations would be for McClay to ask India to agree to remove, or amend, the clause now. He has asserted changes are not possible and the agreement has to be accepted or rejected in its entirety, but that doesn’t appear to be true. Under the Vienna Convention on the Law of Treaties, changes can be made between signing and ratification so long as they do not defeat the purpose of the Treaty. Cleaning up the text of a treaty before ratification to ensure it accurately reflects the parties’ intent is a well-established procedure known as “legal scrubbing”.
And it seems very unlikely that India would object to the UNDRIP clause being removed or amended given it has no relevance to the agreement’s objectives and wouldn’t in any way undermine its intent. Indeed, to underline the clause’s irrelevance to Indians, its negotiators entered a reservation stating that it didn’t apply to them.
Why, then, would McClay assert that nothing can be changed in the document at this stage? Perhaps Seymour’s comment to Laws that Labour might resist any changes to the text of the agreement offers a clue. As he put it: “The Labour Party might say, ‘C’mon guys, we said we’d support this, why the change?’”
NZ First has said it will oppose ratifying the treaty, so Labour’s vote is crucial to the enabling legislation being passed. The necessity of keeping Labour on side might explain McClay’s promise to avoid introducing a similar clause into future agreements rather than agreeing to delete the clause in the current document — or at least downgrade its status to “noted”.
It has been mooted that Labour may have been responsible for the strengthened UNDRIP clause being included as the price of its support. After all, the party has never offered any indication it has given up on implementing He Puapua. Even after Ardern resigned in January 2023, Hipkins refused to repudiate co-governance when he was Prime Minister despite having promised a bonfire of unpopular policies.
McLay’s promise to shut the stable door in the future after the He Puapua horse has bolted will undoubtedly please Labour, the Greens and Te Pāti Māori immensely but many among the Coalition government’s voters will remain incensed until the agreement has been altered.
Gary Judd certainly pulled no punches in his submission to the parliamentary committee examining the treaty:
“If this committee is to truly act in the interests of all New Zealanders, it will recommend to the House that the FTA not be endorsed by Parliament until it has been amended to remove [the UNDRIP clause].
“A further recommendation the committee could legitimately make depends on how the provision got there. If it was with the minister’s approval, he should resign. If he did not approve it, the officials who ought to have drawn attention to it to seek approval should be disciplined.”
National’s Minister for Trade and Investment, Todd McClay, has said he is unaware of how it got there. Despite being the lead political negotiator, he appeared extremely flustered in an interview on The Platform. When Sean Plunket demanded to know, “Who put that [clause] in there?” he could only say he would “go back and have a look at the negotiations”.
While the UNDRIP clause is not directly binding on New Zealand’s domestic law, it is contentious mainly because of the wider implications of it being “affirmed” in a treaty.
Parliament’s website says: “Courts tend to presume that legislation and the common law should be interpreted and applied in a way that is consistent with international law.”
Or, to state it more bluntly, ratifying the reference to UNDRIP opens up the possibility of activist lawyers and judges deciding that both New Zealand’s Parliament and government strongly support and agree with its principles and that they can therefore be used to guide the formation of law and policy.
UNDRIP, of course, is not simply an “expression of aspiration” as John Key claimed when his Minister of Maori Affairs, Dr Pita Sharples, unexpectedly went to New York in 2010 to announce New Zealand’s support at the UN.
As Gary Judd, KC, wrote on his Substack this month: “UNDRIP is not just an abstract international statement. It became the foundation for He Puapua… [which is] a blueprint for major constitutional change, including forms of co-governance…”
Commissioned by Jacinda Ardern’s government in 2019, He Puapua presents a detailed roadmap for establishing a parallel Māori state that would radically reshape the nation along racial lines.
Judd suspects the UNDRIP clause was “inserted to advance a domestic political project under cover of trade policy”.
“Whether that happened through ideological zeal within the bureaucracy or through deliberate ministerial choice, the effect is the same: Parliament is being asked to approve a trade treaty carrying constitutional freight that has never been honestly put to the public.”
Last week, when The Platform’s Michael Laws asked David Seymour, “How the hell did that [clause] get in there?”, he suggested it was likely to have been the mandarins in MFAT who were responsible rather than Todd McClay himself.
“The Ministry of Foreign Affairs... have a specific Māori partnership organisation... They have gone about inserting this, in spite of the minister, I suspect.”
No matter how and when the clause was introduced, both National and Act appear to have been caught completely off-guard by the sudden rush of criticism.
In a response on May 20 to an inquiry from Don Brash of Hobson’s Pledge, McClay noted that UNDRIP was “first included in the United Kingdom and European Union FTAs”, signed in 2022 and 2023 respectively.
But this attempt to soothe Brash’s concern glosses over reality. The UK-NZ and EU-NZ agreements didn’t go further than to “note” that New Zealand and the UK hold “positions” with regard to the Declaration. The India-NZ treaty, however, “affirms” New Zealand’s commitment to UNDRIP, which is a significant shift.
“Noting” does not imply approval; it simply acknowledges UNDRIP’s existence. “Affirming” explicitly signals strong political agreement with, and commitment to, the text of UNDRIP, along with our respective national positions.
What will astonish — and anger — many centre-right voters is that, despite National being elected in 2023 in large part to eradicate co-governance, it has not only strengthened the language referring to UNDRIP but McClay is attempting to downplay its significance.
The intense scrutiny is obviously discombobulating for National, but also for Act, which has promised to join National and Labour in ratifying the agreement when it comes before Parliament. Many of its supporters will view endorsing an affirmation of UNDRIP as totally incompatible with its stand against co-governance — notably pursued by the Treaty Principles Bill.
In his email to Brash, McClay tried to allay fears that the clause might open a Pandora’s box of legal consequences:
“I asked my officials to review the references to UNDRIP in a number of chapters in New Zealand’s recent trade agreements including the NZ-India FTA and, in all cases, any references to UNDRIP do not impose and are not intended to impose any obligations on New Zealand law or government policy…”
Nevertheless, he seemed to grasp that such an assurance might not entirely win over his critics. He promised to do better: “Following the review, I have directed that UNDRIP should not be included in future FTAs unless it might be necessary as part of the negotiations process. However, this would be a decision for ministers and would not change the fact that UNDRIP is not legally binding.”
Again, McClay is glossing over the fact that once UNDRIP is affirmed in a binding international treaty, the courts can harness it to guide domestic law.
A far more satisfying solution than offering a good behaviour bond in future negotiations would be for McClay to ask India to agree to remove, or amend, the clause now. He has asserted changes are not possible and the agreement has to be accepted or rejected in its entirety, but that doesn’t appear to be true. Under the Vienna Convention on the Law of Treaties, changes can be made between signing and ratification so long as they do not defeat the purpose of the Treaty. Cleaning up the text of a treaty before ratification to ensure it accurately reflects the parties’ intent is a well-established procedure known as “legal scrubbing”.
And it seems very unlikely that India would object to the UNDRIP clause being removed or amended given it has no relevance to the agreement’s objectives and wouldn’t in any way undermine its intent. Indeed, to underline the clause’s irrelevance to Indians, its negotiators entered a reservation stating that it didn’t apply to them.
Why, then, would McClay assert that nothing can be changed in the document at this stage? Perhaps Seymour’s comment to Laws that Labour might resist any changes to the text of the agreement offers a clue. As he put it: “The Labour Party might say, ‘C’mon guys, we said we’d support this, why the change?’”
NZ First has said it will oppose ratifying the treaty, so Labour’s vote is crucial to the enabling legislation being passed. The necessity of keeping Labour on side might explain McClay’s promise to avoid introducing a similar clause into future agreements rather than agreeing to delete the clause in the current document — or at least downgrade its status to “noted”.
It has been mooted that Labour may have been responsible for the strengthened UNDRIP clause being included as the price of its support. After all, the party has never offered any indication it has given up on implementing He Puapua. Even after Ardern resigned in January 2023, Hipkins refused to repudiate co-governance when he was Prime Minister despite having promised a bonfire of unpopular policies.
McLay’s promise to shut the stable door in the future after the He Puapua horse has bolted will undoubtedly please Labour, the Greens and Te Pāti Māori immensely but many among the Coalition government’s voters will remain incensed until the agreement has been altered.
Gary Judd certainly pulled no punches in his submission to the parliamentary committee examining the treaty:
“If this committee is to truly act in the interests of all New Zealanders, it will recommend to the House that the FTA not be endorsed by Parliament until it has been amended to remove [the UNDRIP clause].
“A further recommendation the committee could legitimately make depends on how the provision got there. If it was with the minister’s approval, he should resign. If he did not approve it, the officials who ought to have drawn attention to it to seek approval should be disciplined.”
Graham Adams is an Auckland-based freelance editor, journalist and columnist. This article was sourced HERE
18 comments:
I have never been opposed to a parallel Maori state but it would never be financially independent: state A would always need to subsidize state B. I thought we already had a Maori university, Te Wananga. Why is that university never in the news for producing world leading scientists, mathematicians, engineers?
Just how free is this Indian FTA for the future of New Zealanders. The discovery of UNDRIP secretly imbedded in this document has found both Luxon and McClay with curried egg on their faces. Their self congratulatory back slapping ownership of this, once in a lifetime deal, has them both running for the hills, claiming ignorance of what they signed off on. As an aside, I believe there was also support in this agreement for the Paris Climate Accord to further their net zero fantasy. Political treachery may be a little harsh, political naively a little generous. It is clearly McClay and Luxon’s moral responsibility to remove all reference to UNDRIP from the agreement before being ratified in parliament.
Thank you Graham!!!
I certainly want to know how this clause got included and who sanctioned its inclusion.
And I want to know now not in 2 years time, it carnt be hard
This is more than a disgrace. If anyone has the power and ability to get to the bottom of how this potentially treasonous provision arose, it’s Minister McClay. If he refuses or is incapable of establishing and disclosing such, then he is not only incompetent, he deserves our utmost condemnation, and too does his 'wall-sitting' boss - for allowing it to transpire under his supposed watch.
To suggest it won’t really matter and that they won’t put it in other treaties is not only ridiculously naïve, but patently stupid. And, who says we can’t go back and renegotiate - for clearly India also didn't want a bar of UNDRIP, or they wouldn't have inserted 'a work-around' - unlike us who clearly wanted to be caught by it?
If history has taught us anything, it’s give Maori activists an inch and they’ll take a country mile. Grift and extortion are their stock and trade, and we’ve seen that with their claims from Meridian, more recently Santana, and now the Port of Tauranga. And just look at what they’re up to in the Far North over sovereignty issues and this UNDRIP 'affirmation' will only add considerably more fuel to the fire. All the while, our gutless Government essentially turns a blind eye, and don't start me on our media.
All this has to stop, or we are truly stuffed. We will go down in the annals of time as once a world-leading democratic nation, only to be infected with the 21st Century ‘Virus of Woke’ stupidity that resulted in its demise into a corrupt backwater of tribal stone age rorting and grift.
But I suppose, at least we'll know who was responsible for the inevitable upheaval, decline and revolt - so that future generations can at least spit on their graves.
Proof really (if ever proof was needed) that MP's do not read legislation that they vote for (because they just block vote) therefore, by extension, there is no need for so many MP's. Also proof of far left deep state actors embedded - obviously in MFAT, but likely in all ministries, who's job it seems includes 'brazen mischief' - not only without penalty, but to the extent that they parade it in their division and/or job titles! A perfect example of public servants inflicting damage on NZ-Inc orders of magnitude higher than their inflated salary. But again, the MP's voted for it..
A simple solution. The politicians are saying "words don't mean anything" and "a clause doesn't mean anything". Well, remove it then.
More importantly, why is the Maorification agenda so important to these people? Many citizens are speaking out about the pitfalls of this direction, only to be ignored.
They truly seem to believe one race should have special privileges and are prepared to ignore our real history in pursuit of their agenda. As I said yesterday, if you think these politicians are unaware of this, I have a bridge to sell you.
Am I alone in believing that this insidious creep (no it is a deluge) of things which perpetuate, endorse and reinforce iwi power over the rest of us gets worse by the day? All while this coalition blithely drifts along telling us the main focus of the populace is the economy and the cost of living. The hell it is, if Luxon and Co do not do the main job we put them in power (that is a joke - who does have the power? I think it is iwi.) and do it rapidly and before the election, we are screwed. No, I think it is too late, WE ARE SCREWED.
Excellent contribution by Graham Adams following up on other writers - Brash and Judd bringing this issue into public focus last week.
I believe ACT and David Seymour have opined with clarity, when at Para 13 David suggests "it was probably mandarins in MFAT and not Todd McClay himself that inserted the UNDRIP clause"
It is a voluminous document >1300 pages and a scurrilous officer can reasonably be suggested .
The word " affirm UNDRIP " says it all. Synonyms: pledge, assert, proclaim, guarantee
- easy to see where the pro-Maori judiciary could go with this.
UNDRIP is affirmed in this FTA which will spill over into other legal documents. Wait and see.
I think the nz govt is enacting he puapua without telling the nz public. Perhaps that is why they are not intervening in the far north council iwi takeover. I guess they can't be too public about it or there would be a massive flight out of nz rather than a gradual one. Nz id stuffed. It will be another fiji, just a cold one.
For those that think it will stop at co-governance I have a bridge for sale.
If it can’t be changed as the claim ACT at a minimum should pull their support which should then collapse this whole poorly thought out “deal” and save the integrity of our society.
When one partner in a deal has billions and the other has millions there needs to be a lot of protection for the smaller partner. This deal has nothing, just protections for the larger partner 🤦♂️
It seems to me with far too much of our legislation, far too many presume that someone more able and diligent than themselves has pondered or is all aspects. The consequent failure to examine sceptically and in detail leaves wide open to artful infiltration by the many maori fifth columnists now thickly embedded within all reaches of the public service. Weasal words like the Principles of the Treaty should have been recognised as such when first mentioned.
"Todd McClay, has said he is unaware of how it got there."
McClay must have sat in that Business Class seat for at least half a day each way on his way to India.
Not enough time to review his deal ??? Get real - of course, he knew the UNDRIP reference was there !
If it's not good enough to be in future deals of any sort, then it has to be taken out of this one.
It's only a stroke of a pen - no big deal, unless he actually wants it be ? ?
Take it out now before it becomes another weapon against democracy.
ACT, please do not allow this deal to go through with this UNDRIP reference, or any other reference to Maori being special people that need special treatment.
Who put the UNDRIP stuff in there ? No question, but white ants that live in every corner of every government and related bodies, slowly, carefully, rotting out the infrastructure of NZ.
Stop the bullshit, McClay, Luxon, Watts et al - stop treating us as stupid .
MfK
This will come back to haunt us, NZ will suffer further because of this UNDRIP affirming clause... will Luxon and Mcclay sacrifice us once again for their vanity?
Key, Finlayson, Luxon, McLay. . .
Anyone see the common thread here?
How much longer will we put up with the under-hand, seditious treason the National Party is responsible for?
Well done Graham. Please stay on the case. This tale has legs. If you keep pulling threads, the whole gutless political house of cards will unravel.
They need to scuttle this FTA altogether. It isn't acceptable that is pass.
Should have used AI to summarise that might have picked it up
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