Implementation of the United Nations Declaration on the Rights of Indigenous Peoples in Aotearoa - Theory and Practice (UNDRIP)
Symposium in Hamilton, New Zealand, 24-25 July, 2014
Both the New Zealand government and Maori activists were actively engaged in the Declaration drafting process over more than 20 years.
Maori activists working alongside activists of other settler states advocated a particular model of indigenous rights – as human rights – but based on indigenous peoples’ experience of colonisation and settlement. The result is a Declaration that affirmed a right to self-determination, historical redress, free prior and informed consent (FPIC) and land rights. This was a landmark achievement. No other international human rights instrument provides such robust protections for collectives living within states.
New Zealand was one of the few states that participated from the outset in the drafting of the Declaration. However during the final years of drafting New Zealand voiced strong opposition to aspects of the Declaration, especially the right to self-determination, FPIC (interpreted as veto), historical redress and recognition of land rights. New Zealand objected to the notion of human rights as collective rights, arguing “human rights are universal and apply in equal measure to all individuals. This means that one group cannot have human rights that are denied to other groups within the same nation-state.”
New Zealand voted against it in the UN General Assembly in 2007 alongside Canada, United States, and Australia. The four common law states – known as the “CANZUS” group—were the only states to oppose the Declaration. One hundred and forty three voted in favour of it.
New Zealand has since reversed its position and endorsed the Declaration in 2010, as did Australia, Canada and the USA.
But the New Zealand Government’s opposition and sudden reversal has created widespread uncertainty about the Declaration’s implications. It is clear that the Government’s concerns with the Declaration remain.
Before endorsing the Declaration, Prime Minister John Key stressed its non-binding nature, stating, “It is an expression of aspiration; it will have no impact on New Zealand law and no impact on the constitutional framework.” New Zealand’s formal endorsement of the Declaration was also qualified, with repeated references to New Zealand’s “existing frameworks”, “own distinct approach” and “existing legal regimes”. These frameworks would “define the bounds of New Zealand’s engagement with the aspirational elements of the Declaration.” The language of support used by Canada, the United States and Australia contained similar hedges and qualifications.
Additionally, New Zealand legal experts have denounced the Declaration as purely aspirational and of little consequence. Others argue the Declaration represents a weak compromise made by indigenous activists who dropped earlier stronger claims to selfdetermination and independence in favour of a simple application of classic human rights to the specific situation of Indigenous peoples.
Despite these characterisations of the Declaration, Maori leaders and communities have strongly endorsed the Declaration. Sir Edward Durie, for example, cites the Declaration as the most significant international development for Maori since the Treaty of Waitangi (see introductory quote). The Declaration is increasingly cited in legal submissions to the Courts, the Waitangi Tribunal, and international human rights bodies. In addition, as New Zealand delegates consistently stated in Declaration negotiations, New Zealand takes its human rights obligations seriously. The Government’s endorsement of the Declaration means there is a responsibility by government and human rights advocates to undertake a serious inquiry into what the Declaration requires of us.
The Symposium will involve experts in international law and indigenous rights, and domestic legal issues, gathering to discuss issues about the meaning of the Declaration and the likely impact of its endorsement in relation to New Zealand law and policy across a range of thematic areas, including self-government, land and resources, children rights, and the brapidly growing area of business and human rights. There will also be discussion about the implications of endorsement of the Declaration in the context of the UN’s monitoring of New Zealand’s compliance with its human right obligations. Indigenous rights activists and scholars in Canada, Australia and the United States advocate for full implementation of the Declaration, and their experience in these jurisdictions will provide an important source of insights into issues of implementation in New Zealand – particularly given the many commonalities between our countries, ie large indigenous populations, our shared common law origins, and well-developed law on indigenous rights.
This will be the first occasion that a group with such a depth of experience and expertise – both on international law and domestic treaty issues – will have gathered to address the Declaration and its implications for New Zealand in such detail. Similar conferences have been held in other countries (details of these are in Appendix Four) for example a conference on implementation of the Declaration at the University of Arizona and ANU, Australia. In New Zealand, there have also been meetings on the Declaration held by local grass-roots NGOs and activists. In the view of the conference organisers, an indepth and informed discussion amongst experts and practitioners is overdue.