Was the New Zealand Government justified in voting against the Declaration on the Rights of Indigenous Peoples?
Introduction
On the 13th September 2007, the United Nations General Assembly (UNGA) adopted the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration). 143 member states voted in favour of adoption, 11 member states abstained from voting, and four member states – New Zealand, Australia, Canada and the United States – voted against the adoption of the Declaration. The New Zealand Government’s explanation for its opposing vote is that four provisions contained in the Declaration are “fundamentally incompatible with New Zealand’s constitutional and legal arrangements, the Treaty of Waitangi, and the principle of governing for the good of all our citizens.” (MFAT 2007a) These provisions are Article 26 on lands, territories and resources, Article 28 on the rights to redress, and Articles 19 and 32 on free, prior and informed consent (United Nations 2008). This essay argues that the New Zealand Government (the Government) was not justified in voting against the Declaration. The explanation of vote by New Zealand’s permanent representative to the United Nations (UN) can be refuted on a number of grounds, such as, the status of the Declaration at international law, the effects of other international law instruments, as well as other provisions contained within the Declaration. There are also several other reasons to render the Governments position as unjustifiable, such as the fact that the Declaration is non-binding, that the text of the Declaration is a “watered-down” version, and that the Government is in breach of the Treaty of Waitangi as well as its own policies regarding engagement with Māori on international treaties.
BRIEF HISTORY
The Declaration has been described as “the most progressive and comprehensive international instrument dealing exclusively with the rights of Indigenous peoples.” (Charters 2007:123). Its history beings in 1984 when drafting began in the UN Working Group on Indigenous Populations (WGIP). In 1993 the WGIP text was submitted to the Sub-Commission on the Promotion and Protection on Human Rights, who in 1994 approved the text and further submitted it to the Human Rights Commission. In 1995 the Human Rights Commission considered the text and established an inter-sessional working group which was mandated to draw up a Draft Declaration for presentation to the UNGA (with a view to adopt by the end of the International Decade on the World’s Indigenous Peoples: 1995-2004). In 2004, the draft Declaration was not fully supported by many states, so the Working Group’s mandate was extended. Finally, in 2006, the Draft Declaration was forwarded to the Human Rights Council who adopted it and referred it to the UNGA for adoption. The UNGA deferred the adoption of the Declaration until their 61st session in 2007. On the 13th of September 2007, the UNGA adopted the Declaration with an overwhelming majority of 143 to four with 11 abstentions. Unfortunately, New Zealand was one of the states that voted against the adoption of the Declaration.
THE NEW ZEALAND GOVERNMENT POSITION REFUTED
In Aotearoa New Zealand, the position regarding indigenous rights has always been contentious. This contention arises out of the interpretations of the English and Māori versions of the Treaty of Waitangi, and the fact that Māori never ceded sovereignty1. Therefore, in regards to the Declaration, the Government has had particular issues with the right to self-determination and the rights regarding lands, territories and resources. The Government’s position implies a “worse-case scenario” type view, which can be seen as a tactic to monger fear among the general populace, but as stated by Maui Solomon, “non-Māori New Zealanders…need to overcome their irrational fears that giving Māori greater control will diminish their own lifestyles and ambitions.” (Solomon 1998:63)
Self-determination
The Government’s most consistent objection to the Declaration was Article 3's right to self-determination. It was argued that this Article made it possible for indigenous peoples to secede. However, the right to secede is only possible in very specific circumstances, and the right to self-determination should not be interpreted as only meaning secession. In 2007, when the Government gave their explanations to the UNGA, this objection was finally dropped. This is probably because of the concessions made by indigenous peoples in Article 46, following New Zealand’s constant objections. Article 46 ensures States of their territorial integrity and political unity. However, it is also arguable that the Government dropped their stance because it did not want to be seen as objecting to Māori self-determination – when they would be facing a general election the following year, and the previous election (2005) was hugely focused around New Zealand’s race relations.
Lands, territories and resources
The Government argues that rights granted under Article 26 could potentially apply to the whole country and that it “appears to require the recognition of rights to lands now lawfully owned by other citizens” (MFAT 2007a). However, while Article 26(1) grants to indigenous peoples “the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”, Article 26(2) limits that right by stating that indigenous peoples only have the express right to “own, use, develop and control” lands, territories and resources they (currently) possess (Charters 2006). Furthermore, Article 26 is a significantly watered down version, due in part to the Governments constant objections, of the Sub-Commissions text. Initially it provided a list of resources – lands, air, waters, coastal seas, sea-ice, flora and fauna and other resources – to which indigenous peoples have rights to (Charters 2006:129). The Government also states that this provision “implies that indigenous peoples have rights that others do not have” (MFAT 2007a). However, the “New Zealand legal system has always recognised legal pluralism in the sense that different laws apply to different people whose circumstances are recognised as being different” (Quentin-Baxter 1998:42).
Redress
The Government’s objections to the provisions on redress and compensation, particularly Article 28, are much the same as to Article 26. Again they focus on the whole land mass of New Zealand as being possibly encompassed by the provisions, and the concern that land may now be legitimately owned by others. Article 28 provides indigenous peoples the right of redress for lands, territories and resources, traditionally owned, occupied or used, that have been “confiscated, taken, occupied, used or damaged without their [indigenous peoples] free, prior and informed consent.” This right to redress includes restitution, and where not possible, compensation. The Government’s position is that it cannot “uphold a right to redress and provide compensation” for the entire land mass of New Zealand. Yet, in the same statement, the Government acknowledges that it has already settled claims to over half of New Zealand’s land area, and that the existing process regarding redress and compensation are ‘unparalleled and extensive’ (MFAT 2007a). The Government’s position here seems absurd because if the existing Treaty of Waitangi settlements process is ‘unparalleled and extensive’ then there should be no problems in complying with Article 28. Consistent with methods of statutory interpretation in New Zealand, Claire Charters argues that Article 26 must be read in light of Article 28 (Charters 2006:337). Article 28 recognises that indigenous peoples may no longer own certain lands, territories or resources. This refutes the Governments position because it confirms that the whole country does not fall under the scope of these provisions.
The concern that the Government has regarding the rights to land now legitimately owned by others is absurd. This is because Article 46(2) provides that the “human rights and fundamental freedoms of all shall be respected”, and that the rights enunciated in the Declaration can be limited by law and international human rights obligations. The status of the Declaration is non-binding in law. However, New Zealand has signed, ratified and incorporated international human rights instruments, such as the International Covenant on Civil and Political Rights and the United Nations Declaration on Human Rights. The rights enunciated in these international instruments are now part of and enforceable in New Zealand law. Because these rights are enforceable, the override any conflicting rights contained within the Declaration. This would include the right to property. Therefore, the Governments position that the Declaration requires the recognition of rights to lands now lawfully owned by other citizens is unjustifiable.
The Right of “Veto”
The Government argues that Articles 19 and 32(2) give to indigenous peoples the right of veto. These Articles require that state governments obtain the “free, prior and informed consent” of indigenous peoples in regards to projects effecting indigenous lands, territories and resources, or to legislative and administrative measures. To obtain “free, prior and informed consent” is obviously not the same thing as a power of veto. The underlying issue here is the threat these provisions have to the notion of parliamentary sovereignty. However, Alison Quentin-Baxter points out that “Nothing in the concept of equality before the law or Parliamentary sovereignty is inconsistent with the recognition of the political rights of Maori as an indigenous people” (Quentin-Baxter 1998:42). The Government also argues that the right of “veto” provided in these Articles implies different classes of citizenship. However, the Government fails to mention that the indigenous people concerned – Māori – are a party to the Treaty of Waitangi, which is a foundational document of New Zealand’s constitution. This citizen-plus matter has become a real issue among the State and indigenous peoples of the four dissenting countries, especially in the era of globalisation and neo-liberalism (MacDonald and Muldoon 2006). Common citizenship “fails to recognise the unique identity of the indigenous inhabitants of settler societies, [and] it undermines their historical claims as self-governing peoples” (MacDonald and Muldoon 2006:210).
THE TREATY OF WAITANGI
The Government’s position is that the Declaration is ‘fundamentally incompatible’ with the Treaty of Waitangi. However, Alison Quentin-Baxter argues that the Declaration could “be helpful in pointing us towards ways of giving effect to the Treaty, not only in settling claims for historical breaches, but also in the future life of our nation” (Quentin-Baxter 1998:33), and that “Specifically, it might help us reconcile the consequences of the cession by Maori or Kawanatanga and their retention of tino Rangatiratanga” (Quentin-Baxter 1998:33). The position taken by the Government can further be refuted by the fact that the Government has the power to enact legislation under which the Declaration could be read, i.e. that the Declaration must be consistent with the ‘principles’ of the Treaty of Waitangi. Māori are a partner to the Treaty of Waitangi, yet the Government makes the argument that the Declaration is incompatible with the Treaty of Waitangi. This is a hypocritical considering that there was no engagement or consultation with Māori on the Declaration from 2001 until it was adopted in 2007.
ENGAGEMENT WITH MĀORI
Government policy regarding engagement with Māori on international treaties states that “In some cases Māori concerns will be one of the most important factors in developing the government’s position (for example international treaties dealing with the rights of indigenous peoples)” (MFAT 2007b) and that Māori should have the opportunity for involvement during all phases of a treaty making process (MFAT 2007b). Yet, in relation to the Declaration, there was a lack of engagement with Māori, especially from 2001 onwards, during which time consultation with Māori was non-existent. Furthermore, the Government changed the substance of its proposed amendments to the Declaration during that time, which essentially undermines the political legitimacy of their position (Charters 2006:337). It can therefore be argued that the Government is in breach of its own policy regarding engagement with Māori on international treaties. Yet, because government policy refers explicitly to treaties, and not to declarations, a narrow approach confining this policy to treaties only could be adopted by government. If this stance was taken however, it would mean that it could only apply to treaties and no other international instruments. However, it is common to refer to most international instruments as treaties, and because government policy has express reference to ‘international treaties dealing with the rights of indigenous peoples’, this should have been extended to the Declaration because, as stated above, the Declaration is “the most progressive and comprehensive international instrument dealing exclusively with the rights of Indigenous peoples” (Charters 2007:123).
CONCLUSION
The Government’s position seems to have been motivated by its own state-centric, narrow and “worst-case scenario” interpretations of the Declaration. The Government's main motivations for opposing the Declaration are that it requires the recognition of lands now lawfully owned by others and that it grants to indigenous peoples rights that others do not have (MFAT 2006). The Government argues that the Declaration gives rights to indigenous peoples that others do not have and is therefore discriminatory. Yet, “Special laws for Māori do not unfairly discriminate against non-Māori unless it can be shown that, in the context, there is no reasonable justification for recognising the different circumstances of Māori” (Quentin-Baxter 1998:42). The Government’s position cannot be reasonably justified. While it is understandable that the Government want to protect the right to lands of other citizens, the approach taken is illogical because those protections exist within the Declaration and at international law. The Government has arguably breached its own policies regarding consultation with Māori, and has therefore breached its own ‘principles’ under the Treaty of Waitangi.
On the 13th September 2007, the United Nations General Assembly (UNGA) adopted the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration). 143 member states voted in favour of adoption, 11 member states abstained from voting, and four member states — New Zealand, Australia, Canada and the United States — voted against the adoption of the Declaration. The New Zealand Government’s explanation for its opposing vote is that four provisions contained in the Declaration are “fundamentally incompatible with New Zealand’s constitutional and legal arrangements, the Treaty of Waitangi, and the principle of governing for the good of all our citizens.” Firstly, these provisions are article 26 on lands, territories and resources, article 28 on the rights to redress, and articles 19 and 32 on free, prior and informed consent. Secondly, this essay argues that the New Zealand Government (the Government) was not justified in voting against the Declaration. The explanation of vote by New Zealand’s permanent representative to the United Nations (UN) can be refuted on a number of grounds, such as, the status of the Declaration at international law, the effects of other international law instruments, as well as other provisions contained within the Declaration. There are also several other reasons to render the Government's position as unjustifiable, such as the fact that the Declaration is non-binding, that the text of the Declaration is a “watered-down” version, and that the Government is in breach of the Treaty of Waitangi as well as its own policies regarding engagement with Māori on international treaties.
References
Charters, Claire, ‘The rights of indigenous peoples’, New Zealand Law Journal, (2006), pp. 335-337.
Charters, Claire, ‘The Road to the Adoption on the Declaration on the Rights of Indigenous Peoples’, New Zealand Yearbook of International Law, 4 (2007), pp. 121-131.
MacDonald, Lindsey Te Ata o Tu and Paul Muldoon, ‘Globalisation, Neo-liberalism and the Struggle for Indigenous Citizenship’, Australian Journal of Political Science, 41, 2, (2006), p. 209-223.
New Zealand Ministry of Foreign Affairs and Trade (MFAT), Statement by Clive Pearson, Representative of New Zealand, on behalf of Australia, New Zealand and the United States of America, on the Declaration on the Rights of Indigenous Peoples, 17 May 2006, [Internet], 2006, [accessed 23 July 2008], available from http://www.mfat.govt.nz/Media-and-publications/Media/MFAT-speeches/2006/0-16-October-2006b.php
New Zealand Ministry of Foreign Affairs and Trade (MFAT), Strategy for Engagement with Māori on International Treaties, [Internet], 2007, [accessed 23 July 2008], available from http://www.mfat.govt.nz/Treaties-and-International-Law/03-Treaty-making-process/Engagement-with-Maori.php
New Zealand Ministry of Foreign Affairs and Trade (MFAT), Explanation of Vote HE Rosemary Banks, New Zealand Permanent Representative to the United Nations, 13 September 2007, [Internet], 2007, [accessed 23 July 2008], available from http://www.mfat.govt.nz/Media-and-publications/Media/MFAT-speeches/2007/0-13-September-2007.php
Quentin-Baxter, Alison, “The International and Constitutional Law Context”, in Alison Quentin-Baxter, ed., Recognising the Rights of Indigenous Peoples, Wellington, Institute of Policy Studies, 1998, p. 42.
Solomon, Maui, “The Context for Maori (II)”, in Alison Quentin-Baxter, ed., Recognising the Rights of Indigenous Peoples, Wellington, Institute of Policy Studies, 1998, p.63.
United Nations, United Nations Declaration on the Rights of Indigenous Peoples, [Internet], March 2008, [accessed 21 July 2008], available from http://www.un.org/esa/socdev/unpfii/en/drip.html
1 Under the English version of the Treaty of Waitangi Māori ceded sovereignty, however, under the Māori version, Māori ceded kāwanatanga. Under the Vienna Convention on Treaties and the Report of the Waitangi Tribunal on the Orakei Claim, the contra proferentem rule applies – bilingual treaties should be construed against the party which drafted it.