Argument over NZ affirming UN indigenous rights declaration | Pacific Beat

Argument over NZ affirming UN indigenous rights declaration

Argument over NZ affirming UN indigenous rights declaration

Updated 15 February 2012, 13:32 AEDT

An argument has broken out in New Zealand about the meaning of a United Nations declaration the country has just signed.

Maori Affairs Minister Dr Pita Sharples, a co-leader of the Maori Party, says New Zealand had decided to agree to the Declaration on the Rights of Indigenous People. Here's how he made the announcement in New York.

Presenter: Bruce Hill

Dr Pita Sharples, New Zealand's Maori Affairs Minister and co-leader of the Maori Party; Public law specialist Mai Chen; Rodney Hide, Local Government Minister and leader of the conservative ACT Party

SHARPLES: I come with humble heart to celebrate the declaration of the rights of indigenous people. The New Zealand government has long discussed this matter and has recently decided to support it. (clapping)

HILL: But what does this declaration actually mean?

Does it obligate the New Zealand government to do something about the position of Maori people, and if so, what?

The answers are unclear.

Prime Minister John Key has played down the significance of the declaration, saying it would have no practical effect.

The Government says the declaration is just "aspirational" and New Zealand's laws would determine how much of it would be implemented.

That's not what Dr Sharples said in New York when he insisted there were no caveats to New Zealand's support.

So what's the truth - what does this indigenous rights declaration mean for New Zealand?

Public law specialist Mai Chen says the United Nations declarations are often a first step towards binding conventions.

CHEN: It is really important that we understand that this is the first step on a journey, and you can't say that an international resolution which has been adopted by 144 countries and increasingly now looks as if Australia and Canada will also adopt the resolution, 146 countries doesn't mean anything. I think it's certainly arguable that the declaration encapsulates evolving international customary law, and when that customary law evolves to the point where it's fixed, then it applies to all states, regardless of whether or not they adopt binding obligations.

HILL: But what are those obligations, that's the thing that doesn't seem to be clear to people. John Key, the Prime Minister is saying to the Maori Party this is a very strong and binding thing, but to other people he's saying it has no practical effect?

CHEN: Well that's what concerns me because you see Crown Law would have given advice to the government this time in 2010 as it did in 2007 when the then government said it couldn't adopt it. And at that point in time the speech is pretty interesting, because it's clear to me that this has been written with legal advice as well. See unfortunately we have difficulties with a number of revisions in the text, in particular four provisions of the declaration are fundamentally incompatible with New Zealand's constitutional and legal arrangements. The Treaty of Waitangi has a principle of governing for the good of all of our citizens. And if you actually go and look at some of these provisions, they aren't set out in the language of aspiration. Article 26 states that indigenous peoples have a right to own, use, develop or control lands and territories that they've traditionally owned, occupied or used. Now the crown law advice must have been that for New Zealand the entire country potentially could within the scope of the article. And similarly Article 28, is the second one that they were worried about; the provisions on redress and compensation. "Again the entire country would appear to fall within the scope of the article, and the text generally takes no account of the fact that land may now be occupied or owned legitimately by others or subject to numerous different or overlapping indigenous claims." So the very interesting thing is when I was looking late last night it appears the Minister of Maoris Affairs at that time in 2007 said, "the declaration also implies that indigenous peoples shall have a right of veto over parliamentary law-making." Now what I'm concerned about is that I know that the statement that this government has now made in 2010 says that they will try and implement this declaration to the extent that it falls within our current laws and constitutional framework. But still, it's going to be pretty difficult to explain to Maori when they read these provisions, and have their expectations shaped by the language of it, that somehow New Zealand isn't going to be really giving fully ... to these provisions.

HILL: It gives rise to some serious problems of perception if most people in New Zealand see this as something imposed on the country from the outside by the United Nations, it could give rise to some pretty bitter resentment?

CHEN: Well at the end of the day this is an act of sovereignty by our government, it has to be adopted by our government, and that's what's happened in this case. Look my only point is that I think it's important that New Zealanders know about it and that they read it, because we've been very vague about what's in it. But I think it's clear that it's going to shape Maori expectations about their rights, and therefore I think it is important that we do shine some light on what's in it, because otherwise we might find that Maoridom has huge expectations of what this adoption of the resolution means, and yet that isn't what the government thinks they might get out of the adoption.

HILL: That was New Zealand Public law specialist Mai Chen.

Pacific Beat has attempted to get comment from the Maori Party and the ruling National Party on this issue today, but they have yet to respond.

However joining us live from Parliament in Wellington is the Local Government Minister Rodney Hide, who's leader of the conservative ACT Party, which is a coalition partner of the National Party.

Mr Hide welcome to Pacific Beat, You've heard Mai Chen say in fact this declaration does have some very real implications for New Zealand law. Certainly Dr Peter Sharples from the Maori Party regards it as highly significant, but the Prime Minister John Keys says it's not going to have any practical effect. Who's right?

HIDE: Well in a way they all could be and that's part of the total confusion that's been created by New Zealand ratifying this declaration, because here in New Zealand there's a great deal of confusion in government, there's a great deal of confusion in commentators about what the implications are of signing this declaration, and indeed I think the fact that there's so much confusion is in itself divisive and creating a disharmony, because on the one hand we have the Maori Party whooping it up and saying it's a new nirvana for Maori, and the recognition of group rights for Maori that other New Zealanders don't share, and that's my problem with the UN declaration is it's actually establishing group rights where a group have a set of rights and privileges that the rest of the country don't enjoy. And they're saying this is a great day, a dramatic day, in fact Hone Harawira in parliament today said it was the biggest advance for Maoris since the signing of the Treaty of Waitangi in 1840. And then on the other hand you have the Prime Minister saying look it's nothing, it's just an aspirational document and at the end of the day we'll make the laws, which is true. But my point would be that the expectations of Maori are now being shaped by this declaration, bureaucracies will interpret it on a daily basis and it must mean something because the government has signed up to it. The courts, and particularly the Waitangi Tribunal that's a sort of quasi court, sort of hearing claims will be having regard to the government's commitment to these principles, and ultimately as Mai Chen said the political debate will be shaped by this declaration. And when you read it it is truly horrific because it essentially says as Mai Chen pointed out in Article 26, that if Maori traditionally owned or occupied something it's theirs.

HILL: Well that could conceivably as she said cover the whole country?

HIDE: Yes indeed and there's no caveat on that, so my house in Auckland was no doubt traditionally owned and occupied by Maori and that should be returned, that's the implication of it, and that's why the previous Labour government refused to ratify it. And that's significant because we've gone to a centre right government from a centre left, and Helen Clark as prime minister in New Zealand, she was keen to sign anything the UN put in front of her. She was very, very pro the UN. She refused to ratify it and said it didn't fit within our law and democratic process.

HILL: So why has the National Party government of John Key, which was voted in with quite a strong voter reaction against the previous Labour government, why have they gone even further than the previous Labour government?

HIDE: I'm at a loss to explain that and I was literally speechless when I woke up as a minister in this government to read in the paper that we had ratified it. I truly am at a total loss and I do not believe the government understands the implications of this. I think it's important to note that too that in the context of many countries you can sign this thing and it would have no implication, but in the context of New Zealand it has a big implication because for many, many years through the Waitangi Tribunal process and through the political process, there's been a long discussion and debate of redress with indigenous people, the Maori, and there's a strong movement within Maoridom, and indeed a strong movement within Maoridom for political autonomy and separatism.

HILL: How can you have that in New Zealand when people live geographically side by side; many, many mixed marriages, who's a Maori, who's a Pakeha? How can you disentangle two separate nations from what's effectively one nation?

HIDE: Well it's become a political construct, so you're quite right in a practical sense we're all a bit of Maori, bit of Pakeha, what we call non-Maori, and we live side by side, we work together, but within that there has become a political construct established by government attempts to sort of seek a redress where there's a very, very strong if you like political movement and renaissance and resurgence of Maori identity. Often times to do with politics, and that's what makes the government signing this UN declaration so significant.

HILL: Well just finally and before we go you're actually part of this government, you're in a coalition with the National and the Maori Party, and I always understood that part of the coalition agreement was there would be no surprises for the parties, that there'd be consultation over what the government did. You were saying that you were speechless when you heard this, obviously this was a surprise to you so does this mean that your party's coalition with the government is under strain now? Are you going to look at pulling out or what are you going to do?

HIDE: No we're not looking at pulling out but it is under strain, less so the fact that they failed to notify us, but more that we didn't expect a centre right government, a National government to be advancing, departing so radically from its core philosophy and its election pledges and manifesto that there would be law for New Zealand, and we'd all be equal before the law to be signing up to this sort of nonsense, that's the most upsetting part of it rather than the fact that they did it covertly.

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