What is the UN Declaration on the Rights of Indigenous Peoples?

The UN Declaration brings indigenous peoples’ rights, both collective and individual, together into one international human rights instrument. It establishes a universal framework of minimum standards for the survival, dignity, well-being and rights of the world’s indigenous peoples.

The UN Declaration has 24 preambular paragraphs and 46 Articles that cover a range of human rights and fundamental freedoms related to indigenous peoples. These include the right of self-determination, ownership and use of traditional lands and natural resources, the honouring of treaties and agreements between states and indigenous peoples, protection against genocide, protection of cultural and intellectual property, and rights:

  • To preserve and develop their cultural characteristics and distinct identities;
  • To maintain and strengthen their own institutions, cultures and traditions;
  • To participate in the political, economic and social life of the society in which they live; and
  • To pursue their own visions of economic, social and cultural development.

The UN Declaration highlights the requirement on states to obtain the free, prior and informed consent of indigenous peoples before making any decisions affecting their property, territories, rights or interests. It explicitly encourages “harmonious and cooperative relations” between states and indigenous peoples, and refers to procedures for resolving disputes between indigenous peoples and governments.

The UN Declaration had a lengthy and arduous journey through the UN system, beginning in 1985 when representatives of indigenous peoples’ organisations and states began drafting the text, and twenty-two years of negotiations where some states – including New Zealand – attempted to weaken its provisions.

It was adopted by an overwhelming majority of the UN General Assembly in 2007, with a recorded vote of 143 states in favour, 11 abstentions, and 4 – Australia, Canada, New Zealand and the United States – against. The four states that voted against the adoption of the UN Declaration subsequently made announcements of support for it – Australia in 2009, then New Zealand, Canada and the United States in 2010.

Although it is a non-binding text (that is, a Declaration rather than a Covenant or a Convention which can be signed and ratified), the UN Declaration is used by the UN human rights treaty monitoring bodies as a standard to judge state compliance with the legally binding human rights instruments they monitor (as, for example, UN Committee on the Elimination of Racial Discrimination [CERD] did in 2013 in relation to New Zealand), and as a normative framework by the Special Rapporteur on the Rights of Indigenous Peoples and other UN human rights mechanisms.

The importance of the UN Declaration was emphasised by the first World Conference on Indigenous Peoples (a high-level plenary meeting of the UN General Assembly), which was held in September 2014 at the UN Headquarters in New York to agree an action-oriented Outcome Document on the UN Declaration.

The Outcome Document begins with a paragraph welcoming indigenous peoples’ preparatory processes for the World Conference, including the 2013 Global Indigenous Preparatory Conference held in Alta (Norway) and the Alta Conference Outcome Document; it reaffirms UN member states support for the UN Declaration and their commitment “to consult and cooperate in good faith with indigenous peoples through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them”; it reaffirms the solemn commitment of UN member states “to respect, promote and advance and in no way diminish the rights of indigenous peoples”; and includes commitments on specific actions to implement the UN Declaration. The UN Declaration text and related documents are available at: http://www.converge.org.nz/pma/decrips.htm


Source: Treaty of Waitangi Questions & Answers, Network Waitangi 2018


What was British policy towards NZ before 1840?

Until the 1830s the British policy towards New Zealand was one of reluctance to intervene formally. Britain was having problems in some of its colonies, and wasn’t really interested in one as far away as this.

In 1831, 13 of the Northern rangatira (leaders) sent a letter to King William IV requesting that the King become a “friend and guardian of these islands”. The rangatira letter expressed concern about a possible takeover by the French and suggested that unless the King acted to control the misconduct of British citizens living in or visiting New Zealand, the rangatira would be forced to enforce their own laws.

Pākehā lawlessness was seen in incidents around the country, including murders, kidnappings, enslavements and other criminal acts. Reports on these incidents from rangatira and missionaries were a cause of concern for the British authorities. For the British, matters were brought to a head by an incident in 1830. The Englishman, Captain Stewart, in return for one cargo of flax, secretly conveyed Te Rauparaha and war party from Kapiti to Ākaroa. The sacking of that village and capture of ariki Te Maiharanui horrified the British in Sydney. The failure to bring Stewart to justice in Sydney made the British realise that something had to be done about the lawless state of Europeans in New Zealand.

As a direct result of this incident and the letter from the rangatira, and to protect British trade interests, the British government appointed James Busby to act as British Resident in New Zealand. James and Agnes Busby arrived in May 1833 with a reply to the rangatira from King William, and set up the Residence at Waitangi.

The Northern rangatira began conferring regularly with Busby, seeking advice for the development of their international relationships and trade. One of Busby’s first tasks was to assist rangatira in 1834 in the selection of a national flag, so that their ships would be registered and have official access to Australian and other international ports. Importantly, King William IV formally recognised the flag, thus granting Māori ships the protection of the British Navy when in international waters.


Source: Treaty of Waitangi Questions & Answers, Network Waitangi 2018


What led to the Treaty?

Before the Treaty, Māori had long been concerned about the lawlessness of numbers of Pākehā. Their hope was that James Busby (the appointed British Resident) would exercise control over British subjects, but Busby proved to be largely ineffective in dealing with criminal offending. His requests to Britain for assistance, in the form of troops and a warship, were turned down. Some Māori groups became open to the idea of having a British governor for the Pākehā people.

In the Māori political order, rangatira were responsible to and for their own hapū. They expected, with the growing number of British subjects, that the Queen would want to bring her people to order. And, in fact, this was one reason for British interest in a treaty with Māori. Treaty-making, the process of making agreements between polities, has a long history in Māori politics. Ngāti Kahungunu knew such agreements as mahi tūhono, or “work to draw the people together”. The idea of treating with the Crown was therefore an affirmation of rangatiratanga and recognition that each polity should be responsible for its own people. Also important to the hapū was their growing international trade. The strengthening of ties with Britain was seen as favouring this growth.

Another factor was increasing tension over land, particularly in the North. Hapū allocated plots of land (tuku whenua) to the new settlers, but these were grants of land use, more like leases than sales. These grants were designed to establish relationships of reciprocity between the hapū and the newcomers. Hapū and their rangatira were dismayed when some settlers acted as if they had an absolute right to the land and showed disregard for the hapū who gave the grant in the first place. When Hobson arrived in New Zealand in 1840 rangatira asked that, as part of the treaty agreement, the Crown would see to the return of lands wrongly taken.

The British Crown, too, had concerns about land deals. By the late 1830s, it had been made aware that speculative land purchases of dubious legality were taking place around the country. In 1838, the more law-abiding settlers, traders and missionaries petitioned the British Crown asking for a more effective presence than Busby could provide.

The situation in New Zealand at the time was monitored by humanitarian groups based in London such as the Aborigines Protection Society, which was concerned about the impact of colonisation on indigenous peoples. They had an ally in the Secretary of State for Colonies, Lord Glenelg, who was opposed to the plans of the New Zealand Company to establish a colony based on the principles of Edward Gibbon Wakefield.

However, the departure of settler-laden New Zealand Company ships for Port Nicholson in 1839, without official parliamentary sanction, prompted the Colonial Office to rethink its position. Accepting colonisation as an “inevitable measure” and to protect British trade and economic interests, the new secretary, Lord Normanby, sent Captain William Hobson to New Zealand. He was instructed to acquire sovereignty over the whole or any parts of the country that Māori wished to cede (give up), by negotiating a treaty. Because Britain had recognised Māori rights in the Declaration of Independence, and because this was “binding on the faith of the Crown”, no British authority could be established in New Zealand without Māori agreement.

Treaty-making was a long-established instrument of British colonial policy, so although Hobson did not land with a treaty already fully drafted, many of the guarantees which would be included had been expressed in earlier treaties with other nations.

Hobson arrived in New Zealand on 29 January 1840.


Source: Treaty of Waitangi Questions & Answers, Network Waitangi 2018


MYTH: The Treaty can’t be enforced because there are two different versions

TREATY MYTH BUSTING

 There are definitely conflicts in the two documents:

  • The Treaty in te reo (including its expression into English), and
  • the English version.

The Treaty in the Māori language was signed by Captain Hobson and over 500 Rangatira, over 40 of them at Waitangi on February 6th 1840.

The English version, only written after February 6th, was signed at Port Waikato/Manukau, where the discussion would have been of the content of the Māori text, but the English version was signed (by approximately 40 Rangatira).

When two documents conflict …

In international law where there is any ambiguity:

  • The contra proferentem principle applies, which means that a decision is made against the party that drafts the document, and
  • the indigenous language text takes preference.

In oral cultures such as Māori, verbal agreements take preference over what is written.

This means that for the Treaty of Waitangi the text in te reo takes precedence on all these counts.

In November 2014 the Waitangi Tribunal summarised their conclusions on the Nga Puhi claim (WAI 1040):

  • The rangatira who signed te Tiriti in February 1840 did not cede their sovereignty to Britain. That is, they did not cede authority to make and enforce law over their people or their territories.
  • The rangatira agreed to share power and authority with Britain. They agreed to the Governor having authority to control British subjects in New Zealand, and thereby keep the peace and protect Māori interests.
  • The rangatira consented to the treaty on the basis that they and the Governor were to be equals, though they were to have different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis.
  • The rangatira agreed to enter into land transactions with the Crown, and the Crown promised to investigate pre-treaty land transactions and to return any land that had not been properly acquired from Māori.
  • The rangatira appear to have agreed that the Crown would protect them from any foreign threats and represent them in international affairs, where that was necessary.

Source: Treaty of Waitangi Questions & Answers, Network Waitangi 2018

See also: https://nwo.org.nz/resources/treaty-poster/


The Waitangi Tribunal: a brief summary

Waitangi Tribunal

The Waitangi Tribunal was established by the Treaty of Waitangi Act 1975.

It was set up to investigate claims of breaches of the Treaty from 1975 onwards and recommend compensation where evidence of breaches is sustained (so-called ‘Settlements’). In 1985 the Act was amended so that claims back to 1840 could be examined. The Government appoints the members of the Tribunal.

Authority

  • In most cases the Tribunal has the authority only to make recommendations to Parliament; it has no power to enforce settlements or decide on the amounts of settlements.
  • In some limited instances, it has the power to make “binding recommendations” for the return of certain lands to Māori ownership.
  • It must take into account both the so-called ‘English’ and Māori language texts of the Treaty in its deliberations.
  • It must not “create a further grievance in its attempt to right another”.
  • It can also hear urgent current claims, for example, the Tribunal made recommendations (although ignored) on the Seabed and Foreshore proposals before the legislation was introduced.
  • Claimants can bypass the Tribunal and negotiate directly with the Government’s Office of Treaty Settlements.
  • Parliament has the final approval by choosing whether or not to pass legislation to enact a settlement, and what that settlement will contain.

Fiscal Envelope
The controversial “fiscal envelope” policy of 1994 meant that an arbitrary limit of $1 billion was put on the total of all settlements by the Government – even before the evidence was heard. However this proved controversial and was quietly dropped.

Settlements with Iwi
Since 1999, government policy has been to negotiate settlements only with iwi, which excludes specific hapū and whānau claims; this policy has subsequently developed into a preference for negotiating only with “large natural groupings”, defined by the government over the wishes of Māori. Policies based on government definitions of who it will negotiate with, rather than seeking Māori input into the most appropriate social structures for resolving historical Treaty breaches, have been criticised and challenged by Māori, the Tribunal and others.

The Government is also facing criticism on many other fronts, including for adopting a blanket approach through the Office of Treaty Settlements, which also prefers to work regionally as opposed to addressing hapū-specific claims. The Crown’s right to choose with whom it will negotiate has interfered with traditional relationships between and within hapū, creating new problems. And claimant groups are required to restructure their organisations along legislated lines before the government will finalise any Treaty settlement, further disrupting traditional organisation and relationships. Most settlements amount to less than 2% of the current value of the assets taken. At the same time, claimants must agree to the terms as a full and final settlement.

The Tribunal has proved useful in some respects however; a major plus has been that hapū and individuals have at last been given a public hearing, and their evidence entered into the public record, so the ‘other’ side’s view of some contested historical events has been made accessible to the wider public, for example.


Source: Treaty of Waitangi Questions & Answers, Network Waitangi 2018