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Dr Muriel Newman

No Public Mandate for UN Indigenous Rights Declaration

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In May, Justice Minister Simon Power explained to the United Nations that the new National-led Government intends to sign the United Nations Declaration on the Rights of Indigenous Peoples.[1] The problem for New Zealand is that this is being done without a mandate from the public. If people really understood exactly what the declaration proposes, they would reject it outright, as the Labour Government did – to their credit – in 2007.

During New Zealand’s ‘Universal Periodic Review’, Simon Power stated, “Mr President, I turn now to the issue of international consideration of indigenous issues. In September 2007, the previous Government choose not to support the UN General Assembly’s adoption of the UN Declaration on the Rights of Indigenous Peoples because some of the Declaration’s provisions were considered incompatible with New Zealand’s legal and constitutional arrangements.

“The New Zealand Prime Minister has indicated that he would like to see New Zealand move to support the Declaration on the Rights of Indigenous People provided that New Zealand can protect the unique and advanced framework that has been developed for the resolution of issues related to indigenous rights. That framework has been developed in the context of New Zealand’s existing legal arrangements and democratic processes.”

The Maori Party has long campaigned for New Zealand to ratify the United Nations Declaration on the Rights of Indigenous Peoples. Party co-leader Pita Sharples is so convinced that the Maori Party’s Confidence and Supply Agreement with National will lead to New Zealand supporting the declaration, that he has already announced that the Government will sign this month. The Prime Minister responded by saying that it is a work in progress: We’ve been working our way through that just to make sure we’ve got all the i’s dotted and t’s crossed. I’m feeling more confident that we can sign the declaration but I wouldn’t want to put a time frame on it.[2]

The UN Declaration on the Rights of Indigenous Peoples consists of 46 Articles which confer on indigenous people special rights that elevate their status above that of all other citizens.[3] These include the right to “self-determination” and separate self rule, through their own political, economic, legal, social and cultural systems including separate education, health and housing – all funded by the state – the right to virtually all of New Zealand’s land and resources, the right to on-going compensation, and the right of veto over the actions of the Government.

In 2007, at the 60th United Nations General Assembly, when the Clark Labour Government refused to endorse the declaration, New Zealand’s representative Rosemary Banks 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]

She identified four provisions in particular that stood out. Under Article 26 indigenous peoples are given the right to all lands and territories that they have traditionally owned, occupied or used – including land now lawfully owned by others – with the result that the entire country could potentially be affected.

Under Article 28, which outlines provisions relating to compensation, again the entire country would appear to fall within the scope of the Article, including private land. As Rosemary Banks explained to the UN, “It is impossible for the State in New Zealand to uphold a right to redress and provide compensation for value for the entire country”.

Of further major concern was that the Declaration gives indigenous peoples the right of veto not over the democratically elected government but also over all matters relating national resource management. In particular under Article 19, the government would need to obtain the consent of indigenous people before passing legislations or regulations that may affect them, with Article 32(2) extending that to lands, territories, minerals, water and other resources.

These propositions are at such great odds with the concept of New Zealand as a modern democratic nation where people of all races live peacefully as equal citizens before the law, that it is almost impossible to understand how John Key and his National Government could justify even contemplating signing such a declaration.

David Round, lecturer in law at Canterbury University and this week’s NZCPR Guest Commentator warns, “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.”

And using the declaration as a “tool for future use” is certainly on the mind of the Maori Party. This is no meaningless aspirational affirmation of indigeneity. It is a lever to set in motion an agenda which will see Maori assume higher authority than other New Zealanders over all domestic matters – including the country’s natural resources – a process that is already underway through the increasingly generous interpretations of the Treaty of Waitangi that have been used by successive governments keen to win the support of Maori.

In a speech delivered last week, at “The Indigenous Peoples Legal Water Forum”, the Maori Party co-leader Pita Sharples explained that while the Resource Management Act provides for the inclusion of Maori ‘values, perspectives and consultation’ in resource management matters, Maori overwhelmingly believe it does not go far enough.[5] They are demanding equal status with the Crown – a position which would see them having superior power over all other stakeholders.

With regard to water management, Dr Sharples explains that there is a widespread expectation that Maori will be given the position of “kaitiaki of water”, which he maintains will be “one of equal partnership with the Crown”: “The contribution that tangata whenua can make towards sustainably managing our water resources will be of benefit to all New Zealanders.”

So while it starts with water, if the advocates of indigenous rights get their way, Maori customary rights and practices will assume paramountcy – whether in regard to the foreshore and seabed, claims for private property or indeed lands already compensated and settled, claims for water, minerals, oil and gas, or other natural resources, or indeed matters relating to spiritual and cultural practices – the declaration of indigenous rights covers almost every aspect of life.

All of this leads to a question that David Round addresses in his article The United Nations Declaration on the Rights of Indigenous Peoples: with generous rights potentially being proffered that would elevate an indigenous person to a position equal to royalty, he asks who would qualify?

“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.”

This is a key point: “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?

He concludes, “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… 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.”

The Government does not have a mandate to sign the Declaration on the Rights of Indigenous Peoples when the impact on the fabric of New Zealand society could be so far reaching and destructive. And anyone who tries to shrug off concerns by saying that the agreement will not change anything is politically naïve. Once in place this declaration has the potential to become a springboard for racial supremacy and the sort of separatist unrest most New Zealanders hoped we would never see.

To echo the words of David Round, “Please, Prime Minister, do not sign the Declaration”.

1.Simon Power, Human Rights Council: Universal Periodic Review of New Zealand
2.Herald, Decision near on endorsing UN rights declaration
3.United Nations Declaration on the Rights of Indigenous Peoples 
4.Rosemary Banks, Explanation of New Zealand’s Vote at the UN General Assembly
5.Pita Sharples, Indigenous Peoples’ Legal Water Forum