In 2007, the United Nations adopted a Declaration on the Rights of Indigenous Peoples. It affirmed that the right to self-determination is a universal right. It belongs to indigenous peoples, as groups and as individuals, as much as it belongs to everybody else. Alongside, Australia, Canada and the United States, New Zealand voted against the Declaration. New Zealand said that the Declaration breached the Treaty of Waitangi (Treaty) because it would give Maori special rights over other citizens. In 2010, New Zealand changed its position. Prime Minister John Key argued that the Declaration would help build better relations between Maori and the Crown. In 2018, Cabinet appointed a committee to develop a ‘national plan of action’ to guide New Zealand’s work on the Declaration. Expected this year, it is hoped that the plan will help guide the resolution of disputes on the interpretation of the Treaty and affirm the rights of indigenous people in New Zealand.
The Minister of Maori Development has argued that thus far, government agencies only considered the Declaration on an ‘ad hoc’ basis. In contrast with this ad hoc approach and to ensure the realisation of the rights of Maori, she sees the plan as an opportunity to measure domestic policy progress, and for raising New Zealand’s influence on indigenous policy in international forums. While the Declaration doesn’t replace the Treaty or add any rights or responsibilities, it can be used to resolve disputes about the meaning and obligations in the Treaty. In this regard, the Waitangi Tribunal has stated that the Treaty is a ‘base standard’ for interpretation and that: ‘the obligations described in its articles are a circumstance we can take into account in assessing the Crown’s actions’.
The Treaty’s meaning is often contested. One of the main reasons is that its English and Maori texts are different in relation to a fundamental issue. The English text says that Maori were ceding their sovereignty to the British Crown, thirty-nine people signed it. The Maori text says that Maori were giving the British Crown the right to establish government over British settlers. Maori were retaining authority over their affairs. Five hundred one people signed copies of the Maori text. In 2014, the Waitangi Tribunal upheld the view that the Treaty wasn’t a cession of sovereignty. In response, the government insisted that the Crown’s authority was legitimate and sovereign.
The Declaration provides ways of thinking about how these two positions may coexist. It affirms the state’s right to exist, and to govern. But it qualifies that right to ensure that sovereignty is not an absolute, incontestable and indivisible authority that states may use to take away one group’s right to self-determination. The Declaration also shows how indigenous people are part of the national sovereign, as well as how they may retain independent authority over their affairs.
The Declaration can also be used to affirm the rights of indigenous people in the context of access to healthcare, education and other social services. This is important because in 2019, for example, the Waitangi Tribunal found that the New Zealand primary health care framework didn’t work for Maori as well is it does for others. In another matter, the Tribunal was asked to consider whether the state’s child welfare agency, Oranga Tamariki, was causing harm to Maori children through a discriminatory approach to its care and protection duties. The Tribunal has also been asked to consider whether the government’s decision to stop funding charter schools [special character independent schools] curtailed Maori’s opportunity to take responsibility for schooling in ways that the state system didn’t otherwise allow.
The Oranga Tamariki and charter schools’ cases are deeply contentious. There are no simple answers. However, the common theme is that public services (health, education and child welfare services) whether through the state or Maori agencies like iwi, should work for Maori. The Declaration can be used to help find the best possible approach in these cases. It provides that indigenous peoples have the right to educate themselves in their own ways, and for their own purposes. Also, the Declaration provides for the right to set priorities and make decisions about the delivery of primary health care. It says that when indigenous children are at risk, it is their own communities that have the responsibility to intervene.
The Declaration’s 46 articles are also relevant to matters as diverse as broadcasting, land and resource rights, economic development and criminal justice. For these reasons, the Declaration affirms the commitments implicit in the Treaty.