Friday, December 30, 2011

Wai 262 - The Making of International Instruments

The final substantive chapter of the Waitangi Tribunal’s report, Ko Aotearoa Tenei, addresses the concerns raised by the claimants in relation to the international agreements and non-binding instruments that the New Zealand government enters into with other states.  The Tribunal devotes a chapter of this report to these matters because “the range of international instruments now reaches into the lives of all New Zealanders and can change, reduce, or enhance their most basic rights.  Māori interests in traditional knowledge, culture, economic development, and the environment, to name a few, are all affected”.  The Tribunal considers how the guarantees of the Treaty of Waitangi might act to protect Māori interests in this context and what practical mechanisms might ensure such protection.

The Tribunal examines three important international instruments as brief case studies:
  • United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007) – ‘a landmark international acknowledgement that indigenous collectives as well as individuals have rights to self-determination and in respect of their culture, identity, language, employment, health, education, and other matters.’  The claimants argued that consultation with Māori had been limited, especially considering the significance of this instrument in relation to a broad range of Māori interests.  The last consultation that was referred to in Crown evidence took place in 2003 and the claimants contended that was neither representative nor effective consultation.
  • Convention on Biological Diversity (CBD, 1992) – ‘a legally binding agreement for the protection of all forms of biodiversity (that is, ecosystems, species, and genetic resources) in the common interests of all humankind.’  There appears to have been significant consultation of Māori leading up to the signing of the CBD, however, the claimants submitted that Māori had been excluded from the important ongoing international work programme of the CBD.  The Crown argued that genuine attempts had been made to consult with Māori in relation to this ongoing work, but acknowledged that had not always been successful and noted that its engagement strategy only applied to binding agreements (rather than non-binding guidelines developed through ongoing CBD processes).
  • Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS, 1994) – an agreement that ‘sets international minimum standards for the protection of [Intellectual Property] and provides the framework for New Zealand’s domestic [Intellectual Property] law.’ The claimants raised concerns about the lack of consultation in relation to both the international negotiation of the TRIPS agreement and its implementation through domestic law.  The Crown noted that there had been some engagement with Māori in regards to the domestic legislation.  Māori provided submissions to the select committee considering the legislation and there was further consultation with Māori in relation to subsequent intellectual property law reforms.

The Tribunal notes that these three brief examples suggest some basic flaws in the Crown’s approach to engaging Māori in relation to international instruments.  Each of these instruments profoundly affects Māori interests in some way and yet consultation with Māori was uneven and, for one reason or another, it was often ineffective.  Problems with the Crown’s approach to engagement with Māori have arisen because the Crown:
  • does not always engage with Māori if an instrument is non-binding;
  • sometimes engages at the end (when laws are being passed) not from the beginning; and
  • sometimes does not engage at all even when the Māori interest is important.
The Tribunal suggests that the Crown’s approach will continue to be uneven and ineffective if it continues in the same vein and notes that the Treaty entitles Māori interests to a reasonable degree of protection.  In particular, the Treaty confirms:

that it is for Māori to say what their interests are and to articulate how they might be protected – in this case, in the making, amendment, or implementation of international instruments.  That is what the guarantee of tino rangatiratanga requires.  It is for the Crown to inform Māori as to upcoming developments in the international arena, and how it might affect their interests.  Māori must then inform the Crown as to whether and how they see their interests as being affected and protected.

As with other chapters in this report, the Tribunal suggests here that the type of engagement required by the Crown in order to be Treaty compliant will vary from case to case, to be determined by the Māori interests that are affected.  Significantly, the Tribunal envisages that there may be some instances “when the Māori interest is so overwhelming, and other interests by comparison so narrow or limited, that the Crown should contemplate delegation of its role as New Zealand’s ‘one voice’ in international affairs”.