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Anthony Willy

The Rights of Indigenous Peoples

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In April 2022 a group comprising: Iwi Chairs (leaders of Maori tribes with enormous wealth), The Human Rights Commission and The Maori Affairs Department published a document entitled “ Key themes for Maori targeted engagement in a plan to implement the United Nations declaration on the rights of indigenous people (the declaration) known by its unhappy acronym “UNDRIP”. Leaving aside the difficulty of knowing what “targeted engagement” means (presumably one picks and chooses the topics which best suit the case being made) it is clear that the intention of the paper is to examine the United Nations Declaration and enquire whether it has been, and is being, implemented for New Zealand citizens who happen to have some Maori blood. Before embarking on a review of the paper it is necessary to enquire if Maori people can be described as the indigenous people of New Zealand in 1840  or at any time. Curiously there does not appear to be any definition of the word “indigenous “in the “declaration” and the concise Oxford Dictionary refers only to native plant life.  The internet is more helpful and gives various definitions of the word including native, original, first, initial ancient and primeval. Webster’s dictionary settles for, the earliest known inhabitants. Ngapuhi leader David Rankin is one of those historians who raises significant doubt about Maori qualifying as “indigenous” to New Zealand and points to the irrefutable evidence that there were peoples living in these islands long before and Maori settlement not least of which were the Maoriori who inhabited the Chatham Islands (a part of New Zealand) before the  arrival of Maori peoples. There is also the difficulty as to how Maori people got to New Zealand given that the only known race with which they share DNA is the Taiwanese who were noted sailors and explored the Pacific long before the Maori legends had them paddling here in their canoes. The only way  in which the Maori inhabitants who signed the Treaty in 1840 could be described as indigenous to New Zealand is that they happened to be the latest arrivals extant at that time Hobson arrived and if so that is not sufficient to meet the test of being indigenous. This for the obvious reason that were it otherwise and if for example Chinese invaded these shores, the mix of New Zealanders presently here would become  the indigenous inhabitants and that is clearly not what the Declaration is aimed at. That said It may be that the United Nations misused the word to describe those people occupying land at the time of  a colonial occupation. Notwithstanding to logical and etymological fallacy inherent in that interpretation that is certainly how those people in New Zealand with some Maori blood have adopted it and forms the  basis of the present enquiry by the government departments.

Assuming that to be so what is immediately interesting about the document is that the consultation is confined to such a narrow group of complainants, of necessity given the topic, overwhelmingly Maori but lacking any evidence that the consultation included the substantial numbers of New Zealanders with Maori antecedents who have integrated into and are valuable contributors to the general wellbeing and economic success of New Zealand in 2022. It also begs the often raised and never answered question of: what is a Maori? Does it include all persons having a smidgen of Maori ancestory and why should  that trump the balance of the genes present. One is left with the uneasy suspicion that claiming the lesser part of inheritance above all others is only resorted to when there is some commercial value in doing so.

The other feature of the document is that it only rarely mentions the Treaty of Waitangi as a source of the indigenous rights which are claimed to have been denied those alleging deprivation and mistreatment consequent on Maori inhabitants agreeing to become subjects of the British Queen in Parliament. Indeed there are  indications that the academics advising the Maori radicals have woken up to the fact that “The Treaty” (as distinct from the principles which underlie it) is a broken reed incapable of bearing the weight of expectations heaped upon it. It may be dawning on these advisors that calling the compact entered into in 1840 a “Treaty” is a courtesy title only and not something recognised at international law. Neither is the document as distinct from the underlying principles  been enacted to form part of our law. This for the simple reason that to qualify as a “Treaty” it must arise from agreements made between sovereign states.  Probably because of an errant assumption made by the British Foreign and Colonial Office in 1840 there was in fact no sovereign ruler in New Zealand in 1840 but merely a collection of tribal families. The resulting document was therefore in the nature of a contract between the Crown and those tribal chiefs who agreed to sign and by which the signatories made certain undertakings each to the other. Like all such documents it has a natural life span which expires when the circumstances become so changed by the passage of time and events make it irrelevant. It would have been no different if the document were a legally recognised treaty. International Law in relation to treaties is clear and summed up in the well understood principle rebus sic stantibus (for those of you whose Latin is a bit rusty it means roughly “as things now stand”). History is littered with examples of expired treaties as a result of changed circumstances. For example nobody in their right mind would, think that the promises made in the Treaty of Versailles following the defeat of Germany in the first world war any longer, govern the  European territorial claims of the French, the Germans and the British. So it is with the “Treaty of Waitangi.”

The question then is reverting to the Declaration have the “indigenous” people of New Zealand been deprived of any of the rights listed therein to the extent that rectification and or compensation is required. In answering this question it is therefore first necessary to see what the Declaration actually says and something of its provenance. It was adopted by the United Nations General Assembly on the 13th September 2007 after 25 years of deliberation. When finally published it was rejected by a number of states including: Australia, Canada and the United States. In 2007 the then Minister of Maori Affairs Parekura Horomia in a Labour government led by Helen Clarke described the declaration as “toothless” and  “fundamentally incompatible with New Zealand’s constitutional and legal arrangements.” In particular he made the salient point that if implemented it would allow claims by others to land lawfully owned by both the indigenous  people and otherwise. This all changed on the 7th July 2009 when the National Party Maori Affairs Minister Pita Sharples said it was “shameful” that New Zealand had voted against the declaration and by the 7th July 2009 had  persuaded his party led by Prime Minister John Key to lend its support and the Declaration was endorsed by the New Zealand government on 29 April 2010.

It is important to realise that the Declaration is concerned with the here and now and does not seek to apply retrospectively other than to encourage states to provide redress for “cultural, intellectual religious and spiritual property taken without their free and prior informed consent.” The question then is did the declaration confer any new rights on people with maori genes not enjoyed by them as New Zealand citizens in 2010?

There are 43 Articles. Those relevant to the discussion document are:

Article 1. The right to full enjoyment, as a collective or individuals of all human rights and fundamental freedoms recognised by the UN charter.

Article 2. To be free and equal with all other individuals and be free of discrimination in the exercise of their rights in particular those based on their indigenous origin or identity.

Article 3. The right to self-determination and the right to autonomy or self-government in matters relating to their internal and local affairs.

Article 4. Similar to Article 3 but recognises the overriding imperative that the rights conferred are subject to “the economic, political social and cultural life of the State.

Articles 25 and 26. Confer on the indigenous peoples a right to maintain a spiritual relationship with lands they formerly owned and to retain their ownership of all lands remining in their possession.

Article 28. provides for redress for lands taken or confiscated without free and informed consent.

Article 31. Creates the right to control their cultural heritage and traditional knowledge and to maintain intellectual property rights over such knowledge.

Article 37. creates the right to the observance and enforcement of treaties and for those treaties to be honoured. See above as to what at International law constitutes a Treaty.

Article 39. Allows for access to financial and technical assistance from the state in implementing the Declaration.

Article 46 however is crucial because it recognises the pre-eminence of the sovereign state. It provides:

Nothing in this Declaration may be interpreted as implying for any state, people, group or person ….. as encouraging, or any action which would dismember or impair totally or in part the territorial integrity or political unity of sovereign and independent states.

And the exercise of any of the freedoms conferred by the Declaration must recognise and respect the rights and freedoms of others “and for meeting the just and most compelling requirements of a democratic society”

For the avoidance of all doubt article 46.3 provides:

“The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith”

Rest in peace the aspirations of co governance and co government of New Zealand sought by the activists and their fellow travellers relying on the Declaration.

Two themes emerge from the document:

First – in those places and circumstances where the peoples living on land the subject of European colonisation, they must be accorded all of the rights, and incur the duties enjoyed by the descendants of the colonising powers.

Second – The  maintenance of the democratically elected sovereign state is paramount and trumps all or any of the other rights conferred to the extent they conflict with that end.

As to the first it is difficult to name a single benefit which the Declaration seeks to make available to indigenous peoples which has not long since been accorded to New Zealand citizens having some Maori blood. It would be tedious to catalogue them all, but to name a few: All Maoris have the vote for their choice of government both local and national from the enactment of the Maori Representation Act 1867. All Maoris who wish to participate in the treaty settlement process have received compensation for lands unfairly taken and in some cases for land taken in accordance with the law of the day for example a Government response to tribal insurrection against the Crown. The Maori language is and has been preserved for those who wish to use it. All Maori customs (other than the less salubrious including slavery, tribal warfare, and cannibalism) continue to exist in the hearts and minds of those who value them. The principles of openness fairness and mutual respect underlying the “Treaty” of Waitangi are at the heart of the interaction of Maoris and Non-Maoris. The claimed Maori spiritual connection with lands and rivers has long been acknowledged, some would say by judicial overreach in the renaming of major landmarks and the vesting of the bed of rivers and lakes in local tribes. As to self-determination it has long been the case that the tribes are free to manage and maintain their own lands, buildings, and treasures. All schools public and private are open to Maori students whose parents wish them to attend. In addition, excellent schools have long existed for the exclusive education of Maori children in their own culture and the interface with non-Maori society. Higher education is open to all Maori students indeed it is more open in some cases than it is for non-Maoris; thus the intake into the department of Psychology at Otago University this year is restricted to six Maori and six non Maori irrespective of grades. Entry into the faculties of medicine have adopted lesser standards of academic excellence depending on whether the candidate has Maori ethnicity. They of course enjoy the same free access to what until recently was a world class health system. Freedom of speech thought and religion (currently with the spectre of “’hate speech” laws hanging over it) is taken for granted by Maori and non-Maori alike. The list goes on and suffice to say there is nothing of any substance contained in the Declaration which is, or has been for many years denied Maori people in New Zealand. It is claimed in the document that Maori people are denied the ability to participate in the market economy. This will come a  surprise to the managers of the elite tribes who count their assets in billions of dollars. Ominously this complaint is coupled with a distaste for free market mechanisms. Rather there is a stated preference for participating in “economic partnerships” with the government. Something eerily similar to what obtains in China and Russia and the other Marxist states.

The story does not end there, of crucial importance is that all people having Maori blood and who wish to do so have long since integrated into our  multi-cultural society and have become, prior to the advent of the present government and its radical maori caucus what we unselfconsciously called New Zealanders. As such they receive all of the practical benefits irrespective of race or colour of a first world society including: A standard of living which according to a recent United Kingdom survey for those born after 1950 is the highest it has been in recorded history. Guarding these rights is the Rule of law in which all are treated equally and impartially before the law replacing the violent tribal customs of pre 1840. All this, until recently in a settled and racially harmonious, incorrupt society in which all peoples are free to pursue their own lawful ends and make the most of their talents. It is no little wonder that Prime Minister Key driven by the need to placate the Maori Party with whom National shared power and without whom he could not govern, shrugged off the adoption of the Declaration as adding nothing to contemporary New Zealand social norms. Prime Minister Clarke was rather more long sighted and as with the case of the foreshore and seabed claims she could see that the document would add nothing to the Maori way of life, but crucially had the potential to cause mischief and racial division. How right she was.

As discussed above it is of overriding  importance and clear beyond doubt that in terms of the declaration no indigenous person can enjoy a right which damages the existence of a democratically elected government That immediately rules out any notion of the governance of the state or territorial local authorities being shared between indigenous peoples and those who came after. Inherent in this is the recognition that in a democratic state (which the United Nations clearly regards as the gold standard) votes, local and national are allocated per head of the voting population regardless of race, colour, or creed.

These are the incontrovertible facts and it is astonishing that two government departments – the Maori Affairs Department and the Human Rights Commission – would spend so much time and taxpayers’ money in ignorance of the plain wording of the Declaration, or worse would simply ignore the contents of the document where it conflicts with the desired outcome of redressing confected complaints. Little wonder that the Leader of the ACT Party  recommends that both Government bodies be consigned to an inglorious history.

What is left of the discussion document is a sad collection of complaints from some twenty-seven named Maori groups consulted (some of whom declined to have their names published) seeking a return to their pre 1840 way of life but at the same time complaining that a place is denied to them in modern New Zealand society. Given that on any rational analysis the claims made in the document are plainly hollow It is difficult to understand what is its purpose. For the most part one could assemble any group of underprivileged New Zealanders and arrive at a similar outcome. But what is clear is that if pursued the whole exercise is utterly destructive of harmonious race relations in New Zealand and for the future of our democracy. That is a tragedy waiting to happen. And all for what? There can be no question of any sharing of government, local or national relying on the Declaration, neither can reliance on the Treaty support such a claim given that on any view of the document it vests sovereignty in the Crown in Parliament. To have any purpose there must be another agenda in play and it has become clear what that is. What we used to call the Labour Party, and which enjoys an absolute majority which the advocates for MMP said could not happen is now in the grip of a group of Maori activists who will stop at nothing to undermine the sovereignty of our Parliament, our democracy and the Rule of Law. This all masked by dishonest and disingenuous political spin thus: Tamiti Coffey we only want to “tweak” democracy to make it fairer for Maoris. Nania Mahuta; we are solely concerned with improving your drinking water (no mention of sewage and storm water, no money in that only expense). Co- governance no problem it has been going on for years according to Christopher Finlayson a former Attorney General no less . He sneers at older New Zealanders who raise these issues, people who have given a life’s work and contribution to make the country what it was before the last election and who have nurtured their children to believe in the principles we hold dear. But never does he disclose any conflict of interest from the money that he and his former law firm made out of Treaty settlements. All the while denying that He Puapua is the policy agenda along with the expropriation of private property involved  “three waters.” Then there is the confected panic over Maori Health which entirely ignores the fact that overwhelmingly those with some Maori blood access health services on the same basis as those with some Scottish or Samoan genes. The catch cry “democracy does not work for Maoris has become the mantra for the destruction of democracy. The list goes on. Lenin would recognise what is being attempted in New Zealand in 2022, as would any self-respecting South American dictator, quite simply we are witnessing a coup designed to dismantle our democracy and the Rule of law and replace it with the worst form of tribalism coupled with the greed of those who want what they have not earned. Well, the gloves are off and more and more New Zealanders are waking up to the need to protect all that we hold dear in our way of life, our democracy, the Rule of Law and our market economy. We do not have much time left.