The General Assembly of the United Nations passed the Declaration on the Rights of Indigenous People (UNDRIP), commonly referred to as “the Declaration” in 2007. The Declaration was finally adopted after two and a half decades of negotiation and has been declared to be the “most progressive and elaborate international tool regarding the rights of indigenous people” (Hanna and Vanclay, 2013 ). Most of the human rights instruments that were adopted before the declaration failed to address the significance of culture at both the individual level and a societal one ( Sargent and Samanta, 2016 ). While some of these instruments protect certain elements of cultural heritage, they do not totally address the interests of indigenous people since such mechanisms often consider culture to be a commodity or object of creativity rather than a way of life. Intellectual property mechanisms, for instance, are individual oriented and cannot, therefore, cope with the communal nature of indigenous culture. The Declaration not only recognizes culture but also gives indigenous people the rights of territories and resources, lands, self-determination, and implementation of agreements, treaties and other progressive arrangement with nations. Even though UNDRIP was initially not a formally an issue of international law, it has gained significant legal and political force over the years. This paper evaluates the Declaration in the context of New Zealand and explains its significance to the indigenous peoples in the country.
All around the world, indigenous peoples are assigned different names such as “native” or “tribal” peoples, first nations, aboriginal, or Tangata Whenua. In New Zealand, the Maori make up the indigenous peoples of the state. In most cases, including New Zealand, it is up to such groups to decide whether they consider themselves to be indigenous, in a process referred to as self-identification ( Nagel et al., 2016 ). There are three shared features and experiences among indigenous peoples throughout the world. First, these groups share a sense of self-identification as indigenous and view themselves to be different from other groups in the state. Second, the have a special attachment to their traditional territory or land. Finally, they often experience discrimination, exclusion, dispossession, marginalization, or subjugation as a consequence of colonization.
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Reasons for New Zealand’s Negative Vote
New Zealand had a problem approving Article 10 and Article 32 on the right to veto over the state, Article 28 on compensation, and Article 26 on land and resources. The country’s representative held that these requirements were “entirely unharmonious with the state’s legal and constitutional provisions, the idea of good governance of New Zealand citizens, and the Treaty of Waitangi.” Additionally, the four requirements were contrary to New Zealand’s democratic processes ( Lai, 2011 ). In their argument against the text of the Declaration, this representative also highlighted the challenge of implementing Article 31 regarding intellectual property but did not elaborate further. New Zealand also argued that it was needless for the country to vote for Declaration as many of the states which supported it would not be able to implement it. The country was reluctant to vote in favor of a text for which it was not ready to acknowledge in a legal context. This section elaborates on the reasons that led to New Zealand’s negative vote for the Declaration.
Self-Determination
During the negotiations, New Zealand presented one of the most contentious and controversial opposition to the UNDRIP. The objection concerned Article 3 on self-determination, which has been regarded as the core of the document. The indigenous peoples of New Zealand held that they would not accept the document if such a right was not included ( Lai, 2011 ). By 2007, self-determination of peoples was already recognized by the United Nations and that deliberated in the UNDRIP is not unlike what was already in existence.
While the meaning of peoples is not established, the disagreement resulted from the fact that sub-national communities had not yet been regarded as “peoples” by international law; they were considered to be “minorities.” The New Zealand government feared that the recognition of the right to self-determination would provide a basis for secession. Therefore, self-determination, in this context, is an elusive idea. Regardless, many indigenous peoples in the country made it clear that they would not pursue secession or undermine the country’s political unity or territorial integrity. The main reason why they insisted on the right of self-determination was to acquire “indigenous sovereignty” regarding spiritual and cultural reaffirmation ( Lai, 2011 ). In fact, none of the representatives of the indigenous community mentioned secession at any stage in the negotiations. Most indigenous people believe that the right to self-determination applies to everyone and it does not include total sovereignty. Furthermore, Indigenous peoples tend to hold a different meaning for sovereignty from that of the West which entails political power over people and land. Indigenous peoples associate sovereignty with cultural identity.
The New Zealand Government also hesitated in endorsing the document based on the perception that the document’s description to the right to self-determination is misleading. The Article on self-determination allows people to exercise their choice as they see fit, which many New Zealand representatives feared is too wide a right in the hands of the indigenous peoples in the country. However, it is worth considering that self-determination has various definitions in diverse settings and also depends on interpretation. While the self-determination referred to in the Declaration entails political participation, it is mainly aimed at ensuring that the indigenous peoples are allowed to take part in public policymaking and execution ( Lai, 2011 ). In other words, this right is principally connected to political participation and may be used by anyone in the state without necessary according to the indigenous peoples the power to form a distinct sovereign state. Such an interpretation is supplemented by Article 18, which states that “Indigenous peoples should be allowed to take part in decision‐making in any issue which would have an impact on their human rights.”
Thus, there was no need for the government to fear the possibility of secession because it is not among the human rights bestowed on the indigenous peoples of New Zealand. The Declaration mainly proposes a partnership in the political processes of the country. The concept of partnership can be translated to mean that the use of self-determination would be modified to a national scale via talks between the state and the Maori.
According to Lai (2011), if Pacific countries endorse the Declaration, it follows that the creation of new United Nations member states would be more likely. Regardless, even when are provisions for the right to self-determination, it cannot be concluded that they are interested in secession. In the case of the Maori, the document enables them to renegotiate terms with the Crown so that the state may give them greater independence and more opportunities to participate in the decision making process in the country. What the Maori are hoping for is to be given more influence on the political, social, economic, and cultural aspects of governance. It is important to understand the possibility that the Maori have visions that are not shared among the indigenous peoples in other countries. Additionally, it is important to appreciate that the Maori opinions on the document may vary in some ways from those of the state. Therefore, both parties need to work towards a feasible agreement on the way forward.
Any fears regarding secession are also unjustified because the indigenous peoples of New Zealand ceded entirely and with no demands for sovereignty to the Crown in the Treaty of Waitangi (Lai, 2011). The problem with this Treaty is that the Maori version of the document mentions governance, instead of sovereignty, which may explain the government’s fears in signing off on the Declaration.
Powers of Veto
New Zealand expressed particular dissatisfaction with the “rights of veto,” as defined in Article 19 and 32 of the Declaration. Like Canada and Australia, New Zealand did not like the requirement to cooperate and consult in good faith in order to gain free, prior and informed permission before effecting any laws that would affect indigenous peoples. This requirement extends to the lands, resources, and territories of indigenous peoples. If New Zealand opted to implement the Declaration, it meant that the state would have to carry out government operations in such a manner that eludes unwarranted meddling with the culture of the Maori. Therefore, New Zealand rejected the document on the grounds that it provides a right to veto over the legitimately elected government ( Lai, 2011 ). The Declaration was also purported to unfair to a section of the population since it implied the presence of different classes of citizenship, and as a result gave a right to veto that the other fraction of the country was not accorded. In their statement in objection to the UNDRIP, the representative of New Zealand insisted that the document was “discriminatory in the country’s current setting” and inconsistent with the ideas of democracy and equality in New Zealand.
However, such an objection is misplaced since seeking consent does not constitute a right to veto. Given that the Declaration requires the state “to try” and get consent, then the document cannot be said to be offering the right to veto. In this case, prior and informed consent is not necessarily a result of the talks; rather, it is a desired one. In other words, the state is required to work towards but not compelled to obtain prior and informed consent from the consultation ( Lai, 2011 ). In fact, the New Zealand High Court holds that the Crown has to act in “honesty” when determining solutions for issues influencing the interests of the Maori. Additionally, while the Declarations creates legitimate state concerns, the provisions of Article 19 and Article 32 do not concern the entire state. The Declaration is mostly limited to state actions that have the potential to affect the interests of indigenous peoples, including their territories, lands, or other resources.
Resources
Article 26 states that indigenous peoples are justified to take possession of, develop, use, or control territories, lands, and other resources that they traditionally inhabited, used, or owned. The representative of New Zealand said that such a policy would cover the entire state, considering the interests of third parties. Also, New Zealand was concerned about the potential instability Article 28 would cause on the land ownership system in the state ( Lai, 2011 ). Endorsing the document would mean according the Maori with the right to restitution for the territories, lands and resources initially inhabited, possessed, or used. The Maori, many decades ago, had lost plenty of their lands and territories through confiscation and settlement by colonialists without their free, prior and informed consent. According to the representative of New Zealand, returning such items to the Maori would be a sophisticated process and one that would have adverse effects on the country. Regardless, such concerns are exaggerated. Article 28 acknowledges the fact that restitution would be impossible in some cases. The state only needs to investigate if a social unit or which one occupied or owned said land or territory before offering any redress.
The endorsement of the Declaration in New Zealand
In a similar scenario to that of Australia, New Zealand endorsed the UNDRIP after a transformation in government. In 2010, New Zealand declared that it was committed to the Declaration amid protests from pro-Maori-rights activists and many of the country’s major scholars. The National Party and the Maori Party had been involved in extended negotiated in the two years before this endorsement. Regardless, the two groups did not demonstrate a shared understanding of the implication of such an endorsement to the state and the Maori in particular. Many Maori considered the ratification of the document to be a major step towards the protection of their rights ( Lai, 2011; Bishop, 2015 ). On the other hand, the government held that the Declaration was not legally binding; rather it was symbolic and to be used to give guidelines for the future. The government stated that New Zealand was going to make real and reasonable progress to the interests and rights of indigenous peoples in the country, but it would take some time. The document has not yet been included in the country’s constitution but it now forms part of New Zealand’s Tikanga. Since the state has publicly announced that it agrees with document, it is expected that the Declaration will influence most future decisions regarding the rights of indigenous peoples in New Zealand.
Assessment of Indigenous Peoples Rights
Right to Self-Determination
One particularly contentious privileges accorded to the Maori in the text is the right to self-determination. In other words, the UNDRIP allows this population to determine their own destinies (Charters, 2016). While the Declaration barely allows indigenous people the opportunity to secede, the text gives the state a responsibility to include indigenous peoples in national decision-making processes, particularly those that affect this population. For many of the indigenous people in the world, the right to self-determination does not constitute a separation from the state and is sometimes obstructed by another state. In fact, there is barely any instance when indigenous peoples in any state have demanded secession in the post-colonial world.
Article 3 requires the state to recognize greater political rights for the Maori. In light of this, it noteworthy that the Maori are not accorded a special right to self-determination from others in the country (Charters, 2016; Langton et al., 2014 ). The aim of the UNDRIP is to address the historic deny of the right to self-determination and linked human rights so that the Maori may outdo systemic handicaps and reach a point of parity with other groups in the country that are considered to be dominant.
Rights to Lands and other Resources
The Declaration requires the state to seek free, prior and informed consent from indigenous peoples before relocating them. Additionally, indigenous peoples should be given an option to return, where possible. While the extent of such a limitation is debatable, the text implies an absolute prohibition of relocation unless these conditions are met (Charters, 2016). According to Article 25, New Zealand would be required to allow the Maori to preserve and enhance their special spiritual connection with their customarily possessed, inhabited or used territories, lands, and other resources and extend this duty to forthcoming generations. In this case, the Maori are allowed to access such resources even though they may not be currently in possession of them.
Right to Equality and Non-Discrimination
Considering the entire document, it is clear that the Declaration is mostly aimed at freeing indigenous people from any form of discrimination and inequality that may result from their indigenous background or identity. The Declaration ensures equality for indigenous peoples considering historical injustices and inequality that indigenous peoples had to endure in most aspects of cultural, political, economic, and social life (Charters, 2016). Accordingly, equality is the foundation and justification for the formulation of the UNDRIP. In New Zealand, the document ensures that the Maori benefit from all human rights at the same level as other groups residing in the country.
Economic, Social, and Cultural Rights
The Declaration, as well as other international laws, affirm the rights to social security, education, employment, health, housing, and adequate standard of living of indigenous peoples. Article 3, for instance, ensures indigenous peoples’ right to freely decide their cultural, social, and economic development. As a result, the Maori are protected from adverse treatment and discrimination based on culture. Also, the document requires New Zealand to support the culture of the Maori, in such ways as recognizing their legal systems (Charters, 2016). Considering the significance of culture to te Maori, New Zealand is required to allow any Maori to identify themselves with their community in terms of traditions and customs. Such an identity allows an indigenous individual to use the Maori language in any dealings with the state, even in a court of law, without being compelled to use any other language. Additionally, the Declaration provides grounds to include the Maori language in the education system.
The Declaration and Human Rights Policies in New Zealand
While the UNDRIP covers all nations and therefore at risk of being inconsistent with some laws in New Zealand, it mostly strengthens what already exists in the state. Even in aspects of human rights that New Zealand is different from the Declaration, the country faces consistent reviews by international human rights institutions. As a result, current Human Rights Commission strives to comply with the UNDRIP ( Palmer, 2014 ). The Commission addresses such issues as the concerns regarding the societal discrimination against the Maori, solutions to land claims by indigenous peoples, Maori participation in the state’s governance, and increasing the levels of education for Maori households while protecting their cultural heritage. All these issues are contained in the Declaration, and it has been found that the New Zealand government has taken them more seriously over the past decade, particularly after the state approved the UNDRIP. Most of the recent policies and recommendations from the Human Rights Commission include the recognition of the influence of the document. For instance, the Human Rights Commission has been able to address discrimination in the education system and improved Crown-Maori relationships more effectively after the state signed in on the document.
Conclusions
The paper evaluates the United Nation Declaration on the Rights of Indigenous Peoples in the context of New Zealand. During this study, it has been found that the Declaration, as the document is often referred to, supports progress in the defense of the rights and interests of the Maori including the right to self-determination, right to parity and non-discrimination, and economic, social, and cultural rights. New Zealand’s concerns about the Declaration included the possibility of secession, providing the right to veto to indigenous peoples, and necessitating the restitution of all land in the state. Unlike New Zealand’s opinions concerning the right to self-determination, this right was aimed at compelling states to allow indigenous peoples to participate in governance and state politics. Finally, after a change in government and more understanding concerning the text, New Zealand endorsed the Declaration. Even though it is not yet legally binding, it is a sign of progress in future.
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