The NZ Government's Policy Towards the Draft Declaration on the Rights of Indigenous Peoples

  • Doug Graham
Attorney-General

Courtyard Lecture Theatre,
Old Government Buildings,
Lambton Quay,
Wellington

The preamble of the Draft Declaration on the Rights of Indigenous Peoples contains an affirmation that "all peoples contribute to the diversity and richness of civilisations and culture, which constitutes the common heritage of mankind". That international affirmation, agreed by a vast range of indigenous peoples, should be a reminder to all New Zealanders that in this country at least, we should appreciate the diversity and richness of different cultures while at the same time recognising that across those differences we have much to share together as New Zealanders. The difficulty in finding the right balance between the two concepts, that is recognising differences yet achieving national cohesion, is well known. We must try and ensure that they are not seen as mutually exclusive but rather concepts which can contribute one to the other, and to do that there is a need for innovation pragmatism and a good deal of common sense.

I am sure that most if not all of the audience today will be aware of the background to the Draft Declaration. But it may be as well to briefly set out its history. In 1982 the Working Group on Indigenous Populations was established consisting of five international experts chaired by a Professor of International Law from Greece, Madame Daes. This working group was a subsidiary organ or the Sub Commission of the Prevention of Discrimination and Protection of Minorities, itself a subsidiary of the Commission on Human Rights. The group was established by the United Nations to bring about dialogue between Government and indigenous peoples, to review national developments in the protection of human rights and fundamental freedoms of indigenous people, and to develop international standards on the rights of indigenous people. You will be aware that by 1993 the working group had developed the Draft Declaration and this document consists of guidelines and broad principles covering such issues as access to services, political rights and the protection of the language and culture of indigenous people. The Draft Declaration was then referred to the Sub Commission which, having adopted the Draft Declaration, referred it to the Commission on Human Rights. The Draft Declaration is now entered a new phase with the establishment of a working group of the Commission on Human Rights to commence the process of negotiation at the inter-governmental level. That working group's first session was held in Geneva in 1995 and the second session took place in Geneva in October 1996. There is a further session scheduled for November this year.

It is likely it will take a number of years before this inter-governmental negotiating stage is completed. No doubt there will be many suggestions to amend the text of the Draft and the outcome will as a result, as with all United Nations negotiations, clearly be a compromise. Assuming that Governments finally agree then, once the Draft is adopted, it will not be an international treaty and will not be binding on United Nations members. Nevertheless, it will be a solemn document of considerable moral force. It will establish political rather than legal benchmarks for United Nations members. I expect that some states will insist on the right to interpret a reply in any final Declaration as they see fit. So it is relatively early days in the inter-governmental phase and it is too early for the Government to be too definitive over its policy towards the whole issue. Having said that, there are certain base points of policy which have been taken by the New Zealand Government. For example the New Zealand Government agrees that indigenous people have the right to exist as a community with their own cultural identity and that they must be involved in determining their own economic and social destiny. A more complete summary of the Government's views was recently released to participants at the second technical workshop on the Draft Declaration which was held in Auckland on the 11 July 1997. Much that I am about to say is taken from that document because nothing further has developed over the last few months. I should add that the paper that was released was qualified with the statement that the Government position had not then been fully considered or endorsed by the coalition agreement.

New Zealand values its reputation as a responsible country that supports the rule of law internationally as well as at home. We fully support the evolution of international norms which, while they may not constitute international law or contain binding commitments, nevertheless do represent a high degree of political congruence about appropriate standards for the further development of human rights. The Draft Declaration being discussed today falls into this category and we have taken the issue seriously and have been fully involved throughout the process to date. We are concerned to avoid vague, ambiguous or inconsistent language which can create problems of interpretation in the future and we wish to ensure that all New Zealanders are comfortable with the norms or standards with which we might agree at the international level.

We in New Zealand of course have the Treaty of Waitangi as our founding document. In recent years the importance of the Treaty and what it means in 1997 has become a topic of much debate throughout the country. The Treaty and its principles are there to guide both Maori and the Crown in their dealings one with the other. You will be well aware that over the last ten years the Waitangi Tribunal and the Court of Appeal have assiduously declared their respective understandings of the phase "the principles of the Treaty". Fundamentally those principles require enach party to act with the utmost good faith one to the other, that there should be full consultation particularly on matters which are likely to affect Maori and that the honour of the Crown requires long outstanding grievances to be addressed. I like to think that we are making some progress with the last of those principles but it has to be understood that even if settlements of grievances are reached that really is only the beginning of a new relationship. The Treaty therefore is rather like a Magna Carta which can be referred to from time to time to ensure that in the future at least, both Maori and the Crown can avoid some of the problems that have arisen in the past. It follows that the Government's attitude to the Draft Declaration is governed to a not inconsiderable degree by its desire to ensure that the provisions of the Declaration are not inconsistent with the Treaty of Waitangi and its principles. We also have to ensure that the provisions of the Declaration are in harmony with existing United Nations human rights instruments. Because the Draft Declaration develops rights of people considered to belong to distinct cultural groups, there is a danger that these collective rights could be interpreted as overriding the rights which members of indigenous groups enjoy as individuals. Accordingly, New Zealand has taken the position that all existing human rights must be safe guarded and we will seek to ensure that the Declaration clearly states that indigenous people continue to enjoy all the protections under international law conferred by existing human rights instruments and indeed the United Nations charter itself.

Of course, the language used in the Draft Declaration is all important. I have already said that vague, ambiguous or inconsistent language can create major problems and it is necessary that the Declaration in its final form is clear, succinct, and precise. In our view much of the draft Declaration is presently cast in absolute language which is prescriptive and the rights in question are often so broadly stated that they sometimes overlap. New Zealand has already expressed its concerns that the rights included in the Declaration should be expressed in unqualified terms only where they embody generally accepted international standards. It seems preferable that elsewhere less emphatic terms should be used.

We have to also make sure that the Declaration is as consistent with New Zealand law as is possible. Our laws are consistent with all major international human rights standards and hopefully this will not develop into a problem. What we need to do is make sure that the Declaration in its final form is compatible with our national laws.

New Zealand has also indicated already that the Declaration should be capable of attracting wide spread international support. If it excludes indigenous people in certain parts of the world then that would not be acceptable. The text therefore should take account of the very different circumstances of different indigenous people.

Having made those preliminary remarks, perhaps I could be more specific on certain important points even though I may only have time to touch on them briefly.

One of the difficulties experienced to date in the drafting of the Declaration relates to the definition of "indigenous people". There is no definition in the Draft Declaration although there is a mechanism for self identification by indigenous people. In our country Maori are tangata whenua, the original inhabitants of New Zealand and in 1992 the movement directed that any term adopted to refer to indigenous people must be sufficiently wide to cover the position of Maori. New Zealand in the past has favoured the inclusion of a definition of indigenous people to make the scope of the declaration clear and to remove the opportunity for countries with indigenous people to deny their existence. We have found however, that a definition that is too limited in coverage could be deficient in itself and could fail to give an appropriate level of protection. We have recently participated, I hope constructively, in discussions on a definition and work on that will continue.

Then there is the difficult issue of "self determination" and what that might mean. Article three of the Draft Declaration states "indigenous 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".

For many years jurists around the world have explored the international legal concept of self determination in great detail. It is a difficult legal and technical issue. The right of self determination in international law has traditionally been associated with decolonisation and has been linked to a range of far reaching political choices including the formation of a new state. The right to self determination is an accepted rule of customary law and it appears in the United Nations Charter of 1945. The right was further recognised in the Iinternational Covenant on Economic Social and Cultural Rights and the International Covenant on Civil and Political Rights. In 1975 the International Court of Justice confirmed the right of self determination as a rule of general international law. On the other hand the United Nations has given explicit support to the principle of territorial integrity in instruments such as the Declaration on the Granting of Colonial Territories and Countries and the Declaration on Friendly Relations between States. These instruments confirm that the right to self determination cannot be exercised in the manner that could undermine the territorial integrity of independent and democratic states which conduct themselves in accordance with international human rights standards.

At the first session of the inter governmental working group, representatives of indigenous people including Maori were unanimous in claiming an unqualified right to self determination. Perhaps not surprisingly very few of the governments participating seemed prepared to contemplate an unqualified right of self determination if that was understood to include a right to secede from a state. The New Zealand Government took the position at the first session that the term "self determination" could be included only if explained in a way which preserves and recognises the territorial integrity of states and the constitutional frameworks where these meet current international human rights standards. That position is consistent with the Government's efforts to e xplore ways in which Maori can exercise greater control over their own affairs within national, legal and constitutional frameworks. We would not support any Declaration which authorised Maori to secede from the rest of New Zealand even if that could somehow physically be done.

The issue of "self determination" is very much tied up with the definition of "peoples". At the first session the New Zealand delegation indicated that it could consider accepting the use of the term "indigenous peoples" in the Draft Declaration, if appropriate language on "self determination" could be negotiated. In the meantime the Government reserves its position on the use of the term "peoples".

Article 31 of the Draft Declaration discusses the right to autonomy or self government in matters relating to the internal and local affairs of indigenous peoples and also refers to the means for financing these autonomous functions. New Zealand has a number of examples where special provisions have been made to encourage Maori authority over matters which directly concern them. In addition to legislation perfecting settlements of grievance claims, these examples include the Maori Community Development Act 1962 which established local Maori Councils, the Te Ture Whenua Maori Act 1993 relating to land ownership, the Maori Language Act 1987 giving official recognition to the Maori language, and the Electoral Act 1993 which provides for separate Maori seats in Parliament which are now calculated on the number of voters registered on the Maori Electoral Role. We believe that these laws are in accordance with a guarantee to Maori of tino rangatiratanga under the Treaty of Waitangi.

We are also committed to finding ways to give Maori greater control over issues of specific cultural or social concern to them within our existing legal and constitutional framework. We have been receptive to initiatives from Maori to assume great responsibility for the delivery of education and health services and we are keen to develop more effective ways for Maori to be heard in the development of public polity. I have to say that I believe that these initiatives are long overdue. But the term "autonomy" and "self government" as used in the Draft Declaration seems to suggest forms for responsibility which go beyond what the New Zealand Government has indicated it is willing to consider. These terms are normally associated with indigenous people living on reservations and not integrated into the wider community. That has little application to New Zealand where Maori are fully integrated. So we believe that the terms used in Article 31 need to be consistent with and not extend beyond New Zealand's domestic situation. While the Government will continue to explore ways in which Maori can exercise greater control over issues of direct concern to them, this will take place within existing legal and constitutional frameworks.

Then there is Article Four of the Draft Declaration. This states "indigenous peoples have the right to maintain and strengthen their distinct political economic and social and cultural characteristics as well as their legal system...." Article 15 states that "indigenous peoples" have the right to "establish and control the education system and institutions", while Article 33 includes the right "to maintain the distinctive juridical customs traditions, procedures and practices....". There are in fact opportunities to include Maori cultural process and norms in New Zealand law. The Children and Young Persons and Their Families Act and provisions in the Criminal Justice Act enable cultural background to be considered before sentencing. There are similar initiatives including mediation schemes and police adult diversion schemes which can involve the community in decision making relating to offenders. There is also considerable involvement in Maori organisations and the provision of programmes in prisons and in the administration of non custodial sentences. At the first session, New Zealand indicated that it can accord certain recognition to indigenous customary law provided it is clear that it should be practised in accordance with reasonable limitations required by the state's legal and constitutional framework. Thus the Government has been supportive of and provided assistance for the development of kohanga reo, kura kaupapa and whananga. As with separate judicial and legal systems the Government believes that any rights to separate education systems or any other systems for Maori will have to be within the overall constitutional and social, economic and legal framework of New Zealand and be consistent with the principles of the Treaty of Waitangi.

The Draft Declaration in Article five states "every indigenous individual has a right to a nationality" while Article 32 states "indigenous people have the collective right to determine their own citizenship". There is no problem here if the aim of the articles is to restate every individuals entitlement to a nationality or to citizenship of the state to which he or she belongs. But it is not entirely clear. It could be interpreted as suggesting that indigenous peoples are entitled to a separate nationality or citizenship within the state or possibility outside and independent of a state. Separate nationality or citizenship appears to be inconsistent with the principles of the Treaty of Waitangi.

Then there is the language of the Declaration relating to land and natural resources which is very broadly stated and far reaching in its effects. In its present form the Declaration is very wide and has the potential to extend well beyond New Zealand law including the Resource Management Act and the Government's Treaty Claims Settlements Policies. Much work is needed to clarify the position there. Equally there is some confusion over the interpretation of Article 29 relating to the ownership, control and protection of cultural and intellectual property. The Government could not support provisions of the Declaration relating to traditional knowledge and cultural heritage which extended beyond existing law and international and intellectual conventions. There is consultation presently under way with Maori on the issue of protection of cultural and intellectual property.

There are then some difficulties with Article 38 which provides that indigenous people have the right to access to adequate financial and technical assistance for certain given purposes. But there is no objective measure provided as to what might constitute adequate resources or how they would rank with other demands on the public purse.

Finally the Government has some reservations relating to the requirement in the declaration to adopt the provisions of the declaration in national legislation. The problem here is that United Nations declarations are not legally binding and do not normally contain such provisions. Such requirement may give greater status under New Zealand law to rights under the Declaration than to those under the Treaty. We would not support a requirement therefore that the provisions of the Declaration be included in national legislation. Nor do we consider it appropriate to have compliance with the Declaration overseen by some international body. It is not normal for a non legally binding instrument to establish international monitoring procedures. We have some problems also with that article of the Declaration which says that indigenous people should not be recruited into the armed forces against their will. Conscription, if that were ever to be considered, seems to be an obligation of citizenship.

I have set out some of the difficulties the Government has with the Declaration. I would not want to leave the impression, however, that we intend to obstruct progress. Quite the contrary. There is a very real need in New Zealand for a re-look at the relationship between Maori and non Maori. For too long we have left grievances unaddressed and we have been slow to turn our mind as a country to the protections of the traditions and culture of Maori. Fortunately I do not believe it is too late to address these matters. We can only do so rationally if both sides are prepared to sit down and talk through the issues quietly and calmly. I express some concern at some of the statements that have been made by representatives of NGOs including our own at international fora. Some of the claims seem to me to be exaggerated and unhelpful. On the other hand that may be because there has been an unwillingness to discuss the matters in a constructive way. Whatever the true position I hope that Maori and non Maori can work together in an atmosphere of goodwill so that these matters can be progressed sensibly. We are a small nation which was colonised 150 years ago. We have been on our own in an absolute sense for only 50 years. We have one Treaty and one indigenous people. We live together in an integrated society in the most beautiful country in the world. There is, despite statements that are made by various people from time to time, much goodwill. We should put it to good use.