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Dr Muriel Newman

Should New Zealand Stand Firm?

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On Friday 3rd April 2009 the Australian Government endorsed the United Nations Declaration on the Rights of Indigenous Peoples. This move fulfilled an election promise made by Kevin Rudd, to overturn Australia’s opposition to the Declaration.

Until that time, Australia had stood alongside New Zealand, Canada and the United States, as one of only four countries to oppose the adoption of the Declaration by the United Nations’ General Assembly in September 2007. Altogether there were 143 votes in favour of the declaration, 11 abstentions, and four votes against. One of the key reasons given by the Howard Government for their opposition was that the declaration provided rights to one group of people to the exclusion of everyone else.

Keith Windschuttle, Editor of the Quadrant Magazine, explained in his article, A depressing new agenda for Aboriginal politics, that the declaration threatened the territorial integrity of the Australian state: “It would encourage a secessionist movement that aimed to establish the Aborigines as a politically separate race of people who were entitled to a state of their own, either within or outside the Commonwealth”.[1]

He warned that if introduced into Australia, the indigenous rights programme being promoted by the United Nations “would revive the entire separatist agenda of Aboriginal politics which, apart from lucrative positions here and abroad for a select class of tertiary-educated activists, has had no positive outcomes for Aboriginal people to speak of, and whose awful failings are reproduced with depressing frequency in the reports of one commission of inquiry after another”.

He concluded, “Meanwhile, of course, the obscene contrast between the lives of most Aboriginal people and the Aboriginal political elite will remain unaffected. The losers will be the women and children in those dysfunctional communities that produce some of the world’s highest rates of murder, violence and sexual abuse. The winners will be the activists who are no doubt already booking their first-class air tickets and hotel suites in Geneva and New York for the upcoming rounds of meetings and conferences”.

The United Nations Declaration on the Rights of Indigenous People consists of 46 Articles ranging from general human rights, to the right to separate self-rule, the right to land and compensation, and the right of veto over the actions of the Government.[2]

With regard to the issue of separate self-rule, Article 3 states that indigenous peoples have the right to “self-determination”, with Article 4 providing for the right to autonomy or “self-government”. That includes the right to establish and run their own political, economic, legal, social and cultural institutions including education, health and housing, with technical assistance and funding provided by the state.

When it comes to land issues, Article 26 of the declaration states that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired” and Article 28 provides for the right of redress, including restitution or compensation.

Of particular concern is the fact that the declaration gives indigenous people the power of veto over the democratically elected government by requiring the State to obtain the consent of indigenous people before doing anything that may affect them. In addition, under Article 32, the state would be required to “consult with indigenous people and obtain consent prior to the approving projects affecting resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources”.

In their briefing papers to the incoming government, the Ministry of Foreign Affairs and Trade explained that, “In 2007 New Zealand voted against the adoption of the Declaration on the Rights of Indigenous Peoples because its contents were at variance with New Zealand law and practice”.[3] While United Nations declarations, unlike conventions, are not binding on the government (Article 46 of the declaration reiterates that fact) nevertheless they are very influential. As the New Zealand representative at the General Assembly meeting stated: “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.”[4]

However, as a result of the fact that Australia has now signed up to the declaration, Maori separatist activists are now pressuring the new government to sign New Zealand up to the declaration as well.

In Parliament late last month Maori Party MP Hone Harawira asked, “Will New Zealand be following Australia’s lead in reconsidering its position, and giving New Zealand’s unqualified support for the Declaration of the Rights of Indigenous Peoples, thereby reversing the New Zealand Labour Government’s vote against it in 2007; if not, why not?” Prime Minister John Key responded by saying, “We will look at the way the Australian Government interprets the declaration and will see whether its interpretation is applicable in New Zealand. However, I cannot comment until we have seen what the Australians are saying about their support.”[5]

On the same day Green Party MP Catherine Delahunty asked, “Why is Aotearoa New Zealand one of only three countries that oppose recognising indigenous rights under this UN declaration?” The Prime Minister answered, “It is important to understand, with regard to the declaration, that it is aspirational and is not legally binding. New Zealand takes its international obligations seriously and does not support texts unless we are able to implement them. So the issue is whether it is possible to do that.”[6]

At present that is where the issue rests.

Meanwhile the activists continue to argue that the government should change its stance and support the declaration on the basis that it is an aspirational document and not legally binding. However, as the United Nations explains “UN Declarations represent the dynamic development of international legal norms and reflect the commitment of states to move in certain directions, abiding by certain principles. The Declaration on the Rights of Indigenous Peoples is expected to have a major effect on the rights of indigenous peoples worldwide’.[7]

That is at the heart of our problem. If New Zealand signs the declaration, then over time – as sure as night follows day – the radical separatist policies of the United Nations would gradually override the domestic laws established by the people of New Zealand. Allowing unelected foreign powers to change the meaning of New Zealand laws is surely not in our best interest.

Two Policy Analysts from the Centre for Independent Studies, Sara Hudson with the Indigenous Affairs Research Program and Luke Malpass with the New Zealand Policy Unit, have co-authored this week’s Guest Commentary “NZ should stay put on UN Indigenous Declaration”. They explain:

“The overall tone of the UN Declaration on the Rights of Indigenous People is one of separatism – which when taken to the extreme is a form of apartheid. Further evidence of this is found in Article 14.1, which states that: ‘Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.’

“In Australia, separate education systems for Indigenous peoples have been a spectacular failure. Aboriginal schools, where children are not taught English until they are 10, have left a generation of Aboriginal adolescents and young adults functionally illiterate. Without the ability to speak English and to read and write, Aborigines are excluded from mainstream society. Perhaps this is what Aboriginal activists want. Many are under the mistaken belief that by keeping Indigenous people separate, they can somehow preserve Aboriginal culture the way it has been for thousands of years. The problem with this fantasy is that culture is not static, and to pretend it can be preserved like some historical artifact is absurd”.

Whichever way you look at it, while not binding, if supported, the United Nations Declaration on the Rights of Indigenous People would be used by Maori activists as highly public leverage to obtain even more lucrative and powerful rights for themselves, at the expense of all other citizens. It would provide additional impetus to a sovereignty movement that is already gaining traction towards the introduction of a separate Parliamentary system and a separate justice system, as well as the already established provision of separate health, education, welfare, and housing services – not to mention a separate Maori flag!

And at the heart of this issue is the definition of “indigenous”. Article 33 of the Declaration states that, “Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions”. If New Zealand supported the declaration, that would mean that the number of beneficiaries who could claim the taxpayer funded special privileges bestowed by the declaration, would continue to grow as anyone in this country who identifies as Maori is regarded as Maori. This is in contrast those ethnic groups like many North American Indian Tribes, which have retained the sort of quantum blood definition that Maori used to have prior to 1974, whereby an individual had to be a half-caste or more to qualify.[8] If that criteria still applied in New Zealand today, the number of people who would qualify would be small.

All in all this aspect of the Declaration, that it confers massive rights and associated privileges to one race of the population to the exclusion of everyone else, is surely the most invidious. It is certainly not the basis for building a strong modern nation capable of competing and thriving in a modern world.

1 Keith Windschuttle, A depressing new agenda for Aboriginal politics, 
2. UN, UN Declaration on the Rights of Indigenous Peoples
3. MFAT, Post-Election Brief 
4. Rosemary Banks, Explanation of Vote by New Zealand
5. PQ5, Declaration on the Rights of Indigenous Peoples—Government Position 
6.PQ12, Declaration on the Rights of Indigenous Peoples—Government Position 
7.UNDRIP, Frequently Asked Questions
8. Michael Bassett, The PC Clobbering Machine