New Zealand’s support of the UN Declaration on the Rights of Indigenous Peoples is cause for celebration. It is a symbol of New Zealand’s maturing approach to the international human rights of Indigenous peoples. The tragedy is that we missed the opportunity. Instead, some did their best to turn it into an embarrassment.

Reminiscent of Brash in Orewa, Anderton, Goff and Hide used the Declaration for their political advantage, and against the interests of all New Zealanders. They played on apocalyptic fears that the recognition of human rights for Maori will strip the majority of New Zealanders of their lands and rights. While the self-interest is not surprising – it is a powerful political motivator - it is ultimately dangerous for the health of the country, exacerbating the type of division of which they complain.

Only the truth can pull some of the harm of the political punch.

First, there has been much confusion about the import of the Declaration – whether it is worthless or with horrific bite. The answer lies somewhere in the middle.

Declarations are not legally binding international legal instruments. However, many, if not all, of the rights in the Declaration apply human rights found in treaties and under customary international law, already binding on New Zealand, to Indigenous peoples. These include the land rights provisions, which mirror international, and in many instances domestic, human rights standards.

New Zealand’s “caveat” that New Zealand’s legal and constitutional frameworks define the bounds of New Zealand’s engagement with the Declaration adds little. New Zealand’s legal and constitutional frameworks determine its approach to all international law, including binding international law.

Overall, the Declaration provides a blueprint for how states and Indigenous peoples, consistently with human rights, ought to work together in partnership and mutual respect.

For these reasons, there is absolutely nothing hypocritical in New Zealand supporting the Declaration while at the same time noting that, in relation to 3 of its 46 articles, New Zealand aspires to achieve them.

Second, international human rights and the Declaration amply balance Indigenous peoples rights with the human rights of all. The Declaration is, formally, hierarchically inferior to human rights treaties, applicable to all. And, the Declaration itself states that the human rights and fundamental freedoms of all shall be respected in the exercise of the rights enunciated in the Declaration,.

To pluck Declaration articles out of context, misinterpret them and then claim that the Declaration means that the whole of New Zealand territory must revert to Maori is at best poor legal analysis.
Of deeper concern for New Zealand is the apparent fear of recognition of Indigenous peoples’ rights. History has taught us that fear of “the other” is almost always dangerous, especially for “the other” when it is in the minority.

In a country with some of the weakest formal legal protections of human rights in the world, where Maori are a minority and lost over 95% of their lands in little over 100 years, it is surprising how often recognition of Maori rights leads to accusations of privilege, at the expense of the non-Maori victim.

In fact, there is more to fear from a failure to respect and protect Maori rights. Maori attachment to New Zealand weakens when their rights to live in accordance with their own cultural mores, on their lands with their resources and waters, are not respected; impulses to divide increase.

New Zealand’s attachment to equality is sometimes expressed as a demand for one law for all. The problem is that this sentiment is translated, in New Zealand political domains, into a claim to identical treatment. It ignores that to treat all the same, in accordance with laws determined by a non-Maori majority, can result in further assimilation of Maori.

The argument that New Zealand should not support a declaration that has the support of states with poor human rights records is dubious. It would rule out New Zealand’s support of virtually all international human rights instruments. It also ignores that New Zealand remained one of only three states, out of more than 190, that continued to oppose the Declaration; a Declaration that also received support from, for example, Europe and Latin America.

Moreover, human rights should not be politically traded: we should measure ourselves against the ideals they embody, not Zimbabwe’s record.

Views expressed by some in Parliament also reflect an arrogant assumption that Indigenous peoples’ rights are well protected here. Compared to formal constitutional and legal protections of Indigenous peoples’ rights in Canada, the United States of America, and much of Latin America, New Zealand’s Constitution and laws rate poorly.
We should be aware of the extent to which New Zealand fell short of international consensus on the human rights of Indigenous peoples by now. We have, over the last 5 years, repeatedly butted heads with international criticism of New Zealand’s approach to Indigenous peoples’ human rights, and the international Indigenous peoples’ rights movement as a whole.

Instead of accepting New Zealand might not be perfect and focusing on means to improve, we denigrated the oversight, including world-renowned experts and other states. Ironically, our defensiveness led us to sound like the same states we criticise.

This does not mean New Zealand should uncritically accept all international human rights without analysis and reflection. But it certainly proves questionable our sense of beneficence and enlightenment in relation to the rights of Indigenous peoples.

There has been a pleasant change in New Zealand’s performance on the international stage in relation to human rights over the last year; evidenced by a governmental willingness to constructively engage on human rights internationally and an acceptance that New Zealand has ongoing human rights issues to address. This was capped off by the decision to support the Declaration; cause for celebration indeed.

Claire Charters, Fellow, NZ Centre for Public Law; former Senior Lecturer, Victoria University of Wellington; and co-editor of a book on the UN Declaration on the Rights of Indigenous Peoples.


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