What’s so scary about self determination for indigenous peoples?

Perhaps there is a good reason for a declaration on indigenous rights if indigenous peoples are not getting human rights as per other similar human rights instruments. Perhaps an indigenous emphasis is needed.

The International Bill of Rights comprises of the Universal Declaration of Human Rights (UDHR) as well as civil and political rights (freedom and democracy) and economic, social and cultural rights (social justice).

New Zealand ratified both the international Covenant on Civil and Political Rights( ICCPR) and the international Covenant on Economic, Cultural and Social Rights. With the UDHR, ratifed in 1948, together these three documents are known as the International Bill of Rights.

Article 1 of both covenants state:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Now I didn’t hear any complaints when we ratified these covenants. But people are complaining about this, describing it as separatism.

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

The above is from article 3 of the UN Declaration of Indigenous Peoples (UNDRIP). It’s a declaration, not a covenant, but because it has that nasty word “indigenous” in it, rednecks like Michael Laws assume it will further a separatist agenda for Māori because they can “freely determine their political status”. This is despite the article being pretty much word for word as the International Bill of Rights which people had no initial problem with - which also states that states shall promote the realisation of the right of self-determination, and shall respect that right.. subject to its jurisdiction.

Laws in mentioning the ICCPR, must have conveniently glossed over Article 26, which notes that “All persons are equal before the law”. The ACT party should also like this. It’s a pity they don’t mention this clause much - it's party policy. It would also be nice if Laws and Rodney Hide acknowledged Article 46 of UNDRIP, which states that nothing in the declaration may be interpreted as authorizing or encouraging any action which would dismember or impair the political unity of sovereign and independent States.

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UN Declaration on the Rights of Indigenous Peoples

New Zealand finally formally agreed to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) early yesterday, more than a year after indicating it may do so, and a year after Australia voiced its support .

Last month, Canada indicated it would support the declaration, meaning the US will soon be the only UN member not to support it.(Update well, maybe not). And from the outset, may I remind everyone that that this declaration was not “signed” - it is not a treaty, it is not legislation, in fact it is not even a convention like the UN Convention on the Rights of the Child - and it is not legally binding. Any influence it has on law is open to interpretation by states - meaning it could have influence on legal matters, but it doesn't have to.

This support should have happened ages ago, but unfortunately Labour refused to support it based on Article 26, which gives indigenous peoples the right to lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired and that states should give legal recognition and protection to these lands, territories and resources.

The Government has that covered by stating that approval of the declaration is conditional on a proviso attached saying that progressing Māori rights occurs within New Zealand’s “current legal and constitutional frameworks”. Canada, no doubt, will do something similar. Article 27 of the Declaration urges governments to establish a ‘fair, independent, impartial, open and transparent process... to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used’. Arguably, National’s current process with regard to the Foreshore and Seabed is doing this.

But that hasn’t stopped ACT saying that the declaration is divisive, is about “separating New Zealand into two”, and about providing special rights to Māori, but ACT has never shown any willingness to understand indigeneity. Clearly Article 46 of the declaration notes that nothing in the declaration may be interpreted as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

Phil Goff could see no point in "signing up" to the declaration, claiming that the Government did not intend to fulfil it after John Key said that the agreement has no practical effect. If that is the rationale behind support or opposition, perhaps Goff should ask himself why he supports our position on the Universal Declaration of Human Rights [PDF]. Perhaps he could ask himself why he supported the anti-smacking legislation, which, unlike a declaration, is legally binding.

Like other UN declarations and conventions agreed to by New Zealand (including the Universal Declaration of Human Rights adopted by NZ in 1948), rights recognised in UNDRIP have been supported in New Zealand for years, and there's no harm in officially reminding the UN community of it.

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Indigeneity and the Foreshore and Seabed

One thing I, perhaps like Lew at Kiwipolitico, realised when reading bits of the the ministerial review of the Foreshore and Seabed legislation, was that the review was conducted within principles of indigeneity with an explicit Treaty-based approach. Indigeneity is not exactly the hot topic within the National Party, but course having Maori academics as panelists on the ministerial review would have certainly pleased the Māori Party, as a panel that operates under the politics of indigeneity would recommend repeal of the legislation.

Indigeneity is greater than a bicultural partnership or a minority status: Indigenous rights predate citizenship and are often articulated by Māori to enhance a greater control over their lives and resources, including in the case of the foreshore and seabed. Māori don’t desire exclusive access to the beaches, but they do desire to have the same property rights as everyone else. This doesn’t mean the desire better ones, but you certainly wouldn’t blame them if they complain when they get lesser ones, particularly when a government enacts these lesser rights.

So, should the Māori Land Court have jurisdiction to consider title to the Foreshore and Seabed? And if it does, should customary (or even freehold) title be granted? That depends on whether you think "one law for all" means that all have the same rights. It depends whether you think the Treaty of Waitangi is a "legal nullity" or part of our unwritten constitution. To some extent, it depends on whether you think customary rights are inherent because of Māori first occupancy, rights that were not explicitly extinguished. And it’s clear what the report writers thought. In just 20 or so words into the report they said:

We consider the whole coastal marine area is subject to customary interests unless expressly extinguished by some specific act.

But customary interests were not extinguished by some specific act. As the Foreshore and Seabed Act legislates Māori as lesser citizens, it is to be repealed. At least that should be the reason for repeal. But according to this media report, some National Cabinet members want a clear explanation of Maori customary rights, or title, and how that might be interpreted by the courts.

They could start by reading something Doug Graham wrote a few years ago, or even the the Ministerial review, starting at page 151. And if they have read the review, then this "clear explanation" that is sought is either a good out to do nothing any time soon, they are seeking a solution that is not in the ministerial review, they don’t think the report is clear enough, or they want to avoid making a decision on customary title. No doubt John Key is "relaxed" about it all.

The ministerial review's first recommendation is to immediately repeal the Foreshore and Seabed Act. The second is to form a policy based on premise that the whole of the coastal marine area (the foreshore and the seabed) is subject to customary title unless it can be clearly shown that such title was not wrongfully extinguished. The third is to draft interim legislation recognising customary title. The rest flow on from that. National wants to please everyone. It remains to be seen how it will recognise iwi and hapu customary rights and do so. In other words, how it would promote equal rights for all.

Policies and legislation recognising indigenous rights do not have a habit of pleasing everyone.Perhaps this is why Attorney General Margaret Wilson said in parliament that although the Foreshore and Seabed legislation breached the Bill of Rights, due to it being blatantly discriminatory, this was "demonstrably justified in a free and democratic society".

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