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NZCPR Guest Forum 
The United Nations Declaration on the Rights of Indigenous Peoples
David Round
1 August 2009

There is a difference of opinion between the Prime Minister and the Minister of Maori Affairs, Mr Peter Sharples, over New Zealand’s possible endorsement of the United Nations Declaration on the Rights of Indigenous Peoples. Mr Sharples believes that we have agreed to sign the document; the Prime Minister, I am happy to say, says it is still too early to say that we will.

Long may it remain so. Our previous Labour government ~ no slouch when it came to making windy statements of concern over the plight of the wretched ~ declined to endorse the document when it came before the United Nations General Assembly in 2007. It would surely be a safe rule of thumb that where the hand-wringers of the Labour Party decline to go, no more thoughtful and reasonable party should venture.  If even fools decline to rush in, surely angels should fear to tread. That we might even be thinking of signing should fill us with alarm. And the very fact that the issue is so close to Mr Sharples’ heart may suggest that he and the Maori Party see the Declaration as not just meaningless lip-service, as it is sometimes represented, but as a tool for possible future use.

What does the Declaration actually say? It has a preamble of two pages, & then forty-six articles on six pages more. It is windy ‘rights’ talk of the most egregious kind. Even offering a summary will cause your eyes to glaze over. Read it for yourselves. As well as all the rights and freedoms in the Universal Declaration of Human Rights ~ you might have thought there were enough there to keep anyone happy ~ indigenous people have rights to self-determination, autonomy and self-government, the protection of their culture, the maintenance of their traditions and customs, their own educational system, their own news media, the protection of their children, participation in decision-making, the improvement of their economic and social conditions, spiritual relationships with their lands, their cultural heritage. They have rights to maintain, protect and develop past, present and future manifestations of their cultures, including artefacts, ceremonies, technologies, visual and performing arts and literature, and the restoration of their cultural, intellectual, religious and spiritual property……

There is an enormous amount of repetition, but, underneath that, much of what is said is not all that unreasonable. (I shall come to the unreasonable bits in a second!) The cynic notes, however, quite a few attempts to have ones cake and eat it too. Indigenous peoples have the right to their traditional medicines and health practices ~ but they also have the right to all available health services, just in case! They have the right to maintain their traditional culture ~ but also the right to ‘development’ away from that culture. They have the right to own and manage their traditional lands, but also the right to demand that the state conserve and protect those lands. They have the right to equality, but also the rights to special measures to improve their social and economic conditions, including special treatment in employment, housing, health care and social security. All people are equal, but some are more equal than others.

The rights in the Declaration are ‘equally guaranteed to male and female indigenous persons’, and ‘particular attention shall be paid to the rights and needs of indigenous elders, women, youth, children and persons with disabilities…’. I will be interested to learn how it is possible to reconcile this with the undoubted inferior status of women and the disabled, for example, which prevails in many ‘traditional cultures’.

Leaving all that to one side, the Declaration may be appropriate to countries whose indigenous populations are large, or still comparatively discrete and distinct entities.  But it is simply inappropriate to a country such as ours. 

The Declaration’s very vague words could be used by malcontents to justify claims to everything under the sun. Any one of the rights mentioned above could become the basis of absurd but disruptive claims. But over and above that, the Labour government recognised that several articles in particular would be highly disruptive and destructive for our own country. Article 26, for example, states that indigenous peoples have a right to own, use, develop or control lands and territories they traditionally owned, occupied or used. This Article would, of course, cover all of New Zealand, and on the face of it would apply regardless of whether the land has another lawful owner now, and regardless of whether it was properly purchased or (if improperly obtained) had been the subject of a later final settlement. Article 28 deals with compensation for lands improperly taken, and says that compensation must be by other lands of equal quality and size, or by monetary compensation. Again, Labour Ministers argued that this provision would require financially impossible settlements; even though New Zealand has extensive and generous processes for redress and compensation, the Declaration would declare them inadequate. Articles 19 and 32 of the Declaration, in particular, also imply that indigenous people should have a right of veto over a democratic legislature and national resource management. In the words of the New Zealand Permanent Representative, ‘these Articles….imply different classes of citizenship, where indigenous have a right of veto that other groups or individuals do not have’. 

Jeremy Bentham long ago warned us to be wary of ‘rights’ talk. Indeed, he considered the idea of ‘natural rights’ to be simple nonsense. To speak of rights is to speak of claims about which there can be no argument. I have a right ~ I am entitled to demand something from you. No questions may be asked. I have a right. That is the end of the matter. Give me my right. And give it to me now. ‘Rights’ cannot be a matter of negotiation or discussion. They are, in one sense, like the gun of the terrorist. They are demands that something be conceded or handed over, not as a matter of public good but simply because there is a ‘right’.

We might hesitate to go as far as Bentham and say that we have no ‘human rights’ at all. But without going that far we can easily see that much talk of ‘rights’ is simply the disguise of a political programme. The object of all sorts of interest groups is to have their particular claim acknowledged by their community as a ‘right’. Once it is accepted as a right, there is an end of the matter. You support euthanasia? Then always talk of your ‘right’ to it. If people eventually give up arguing with you, you have won. You support abortion on demand? Talk of a woman’s ‘right’ to one. You support greater political influence for indigenous peoples? Again, issue a charter giving them special rights. Get that through, and your opposition is history.  

Most of us, as I say, would hesitate to deny that some human rights, anyway, do exist. But I have never heard any explanation as to why ones status as an ‘indigenous person’ means that one has more. If they have a right to their traditional culture, why do we have no right to ours? If they have a right to education appropriate to their needs, do the rest of us have no such right?

The Declaration contains one absolutely amazing omission. In just about every field of human endeavour we are urged to ‘define our terms’. Yet nowhere does the Declaration even attempt to define what or who an indigenous person is.

Oxford tells us that an indigenous person is one ‘born or produced naturally in a land or region; native to that soil, region, &c’. In that sense, all of us born here are indigenous. We may speak a language and have a culture that developed elsewhere; but then, so did the first Maori when they arrived from the Hawaiki they still remember.

If, on the other hand, ‘indigenous’ is used to refer to a people whose ancestors have lived in a place from time immemorial, then New Zealand has no indigenous inhabitants, for human settlement on these islands began only about 800 years ago.

These are the only two things ‘indigenous’ can mean; being born in a place, or having ancestors who have been there forever. The word does not mean merely ‘having ancestors who arrived in a place before someone else’s’. That is, however, the meaning given to the word by sundry spokespeople for the self-styled indigenous. We learn from websites that the only ‘indigenous’ people in Europe are the Lapps, or Sami as they are called these days. Other Europeans are not indigenous to lands they have inhabited for thousands of years. Not only are the Anglo-Saxons not indigenous; the Gaels, descendants of the ancient Britons (a Celtic people), are not either.   In Japan only a few thousand Ainu, an ancient people, are said to be indigenous; other Japanese, despite 5,000 years of residence, are not.

But if Japanese and Britons, despite thousands of years of occupation, are not indigenous, how can Maori be indigenous after a mere 800 years in New Zealand?

The only possible explanation is that ‘indigenous’ is interpreted as meaning simply ‘being somewhere first’. Well, if simply being somewhere first gives one greater rights, then I look forward to European New Zealanders whose ancestors arrived here several generations ago having more rights than recent immigrants. Absurd? Put like that, yes. If a Cantabrian, say, were to claim special privileges in his province just because his ancestors arrived on the first four ships, we would laugh in his face at his pretension. So why, when we change the ship into a waka, does the argument become more convincing?

Let us by all means respect other races and cultures. The simplest and best way to do that, however, is by respecting basic principles of non-discrimination and agreed human rights, rather than by inventing special new rights for a completely undefined category of ‘indigenous’ persons.

For almost two centuries in this country Maori and European have occasionally fought but mostly lived and slept together. Inexorably we are becoming one people. Whatever may be the case overseas, the canoe and sailing ship arrivals here are not separate and distinct entities. Most certainly, tribes are the past. Many Maori, especially those at the bottom of the heap, have little connexion with them. Maori activists recognise this awkward fact. They have always been particularly evasive when faced with the entirely reasonable and obvious question of ‘who is a Maori?’. The popular Treatyist reply at present seems to be that Maoriness is not a matter of race at all but rather one of culture. But the only people entitled to demand compensation for ancient wrongs are the descendants of the wronged ones. ‘Culture’ is no valid base for historic grievances. You may not claim just because you choose to identify with a ‘culture’. Besides, if indigenousness is a matter of culture and not of race, then the distinctive ’pakeha culture’ in which we all participate has the effect of making us all indigenous. 

The attempt to recast division in terms of culture and not race is, despite its intellectual dishonesty, nevertheless a welcome sign that the racial distinction between Maori and European is gradually becoming meaningless and unworkable. So, indeed, is the cultural distinction. Our culture is how we actually live every day, not just the fancy dress we put on when on a special occasion we go the marae or the opera. It is all the clothes we wear, not just the bone carving around our neck. It is the food and drink, work and play of every day. More and more we have these in common.

So then: an ‘indigenous’ Maori race is rot; an utterly separate and distinct Maori race, untainted by intermarriage, is rot; increasingly, a separate and distinct Maori culture is rot; and a political programme of special inalienable ‘rights’ for this mysterious people is also rot. Please, Prime Minister, do not sign the Declaration. We will only regret it.  

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