Tuesday, April 27, 2010

New Zealand's Support for UNDRIP

Last week it was announced that New Zealand would support the United Nations Declaration on the Rights of Indigenous Peoples.  This is an important step forward and it was increasingly becoming untenable for New Zealand to maintain its opposition when Australia and the USA, under new, more progressive administrations, were revising their position on the Declaration.  Canada, the fourth of the opposing countries, is now also reported to be moving towards acceptance of the Declaration.  Even though this is an incredibly important step, the New Zealand government’s announcement represents a rather strange form of support.  Various members of the Government, from the Prime Minister down, have been at pains to play down the significance of New Zealand’s support for the Declaration, mostly suggesting that it would have no practical effect.  New Zealand’s statement of support does contain a number of caveats, but the Declaration will, undoubtedly, influence New Zealand law, as former High Court Judge Sir Edward Durie and public law expert Mai Chen have both pointed out.

New Zealand’s statement of support for the Declaration, and in particular, the qualifications contained within that statement, generally reflect the objections that were raised by the previous Government at the time the Declaration was adopted by the General Assembly.  As noted in a previous post, anyone looking for an accessible overview of the Declaration and an analysis of the New Zealand government’s concerns could do no better than to read this article by Claire Charters.  Those interested in this issue may also wish to listen to this interview with Aboriginal legal scholar Megan Davis that aired on ABC radio shortly after Australia had announced its decision to support the Declaration.  And for more detailed general information about the Declaration, see the recently published collection of essays edited by Claire Charters and Rodolfo Stavenhagen, Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples.  As always, Peace Movement Aotearoa also has a helpful collection of resources that are accessible via their website.

[UPDATE: See also Claire Charters' recent comments here]

The New Zealand government seems to be particularly concerned about the articles of the Declaration that relate to self-determination, rights to land and resources, and involvement in decision-making.  As noted above, these reflect the concerns expressed by the previous government and Claire Charters’ article explains why the fears around these provisions are misplaced.  I thought it might be useful here to draw attention to aspects of the government’s statement of support that relate to the Treaty of Waitangi claims settlement process and the provisions in the Declaration that address rights to lands and resources.

There are three important articles in the Declaration which relate to Indigenous peoples’ rights to lands and resources:

Article 26
1.            Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2.            Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3.            States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 27
States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 28
1.            Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
2.            Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

The New Zealand government’s statement of support notes:

…where the Declaration sets out aspirations for rights to and restitution of traditionally held land and resources, New Zealand has, through its well-established processes for resolving Treaty claims, developed its own distinct approach…Redress offered in Treaty settlements is, however, constrained by the need to be fair to everyone and by what the country as a whole can afford to pay.

The New Zealand government appears to be trying to say that it will support the rights set out in the Declaration, so long as it doesn’t require it to do anything differently.  In particular, the government seems to think that the Treaty of Waitangi claims settlement process should continue unchanged, even if it is inconsistent with the rights set out in the Declaration.  I am not sure how that process can be expected to contribute to meaningful reconciliation if it proceeds on that premise.  Then again, it may well be that, despite the government’s qualifications, the Declaration becomes a much more influential instrument than some of the commentary has suggested.