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Te Tai Haruru Journal of Māori and Indigenous Issues |
Last Updated: 17 June 2024
THE DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES AND THE COURTS
The Hon Dame Susan Glazebrook*
The United Nations Declaration on the Rights of Indigenous Peoples is the first universally accepted text setting out the rights of indigenous peoples. This article first places the Declaration into its international context and in particular discusses its relationship with environmental, labour and human rights treaties. It then examines the Declaration in the domestic New Zealand context, concluding that it is becoming increasingly embedded in Aotearoa’s legal framework.
I Introduction
The process leading to the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration)1 began in 1982. The Declaration went through various drafts until it was passed by the Human Rights Council (the United Nation’s human rights body) in 2006.2 This put it on the agenda of the General Assembly of the United Nations (UN), which eventually passed the Declaration in September 2007.
* Judge of the Supreme Court of New Zealand, and President-Elect of the International Association of Women Judges. DNZM, LLB(Hons) (University of Auckland), MA (University of Auckland), Dip Bus (Finance) (University of Auckland), DPhil (University of Oxford). Thanks to my clerk, Rebecca McMenamin, and my intern, Kathryn Garrett, for their assistance. Justice Glazebook was invited by Aotearoa New Zealand Centre for Indigenous Peoples and the Law to give this public lecture at the Faculty of Law, University of Auckland on 26 September 2019.
The Declaration is the first universally accepted text setting out the rights of indigenous peoples. The rights recognised are comprehensive — ranging from rights to land, to education, to development, to environmental protection. But the Declaration is not just about rights, whether individual or collective. It is also about redress for past wrongs. Perhaps most importantly, however, it is about the significance of being indigenous. It is about cultural and spiritual identity. And, it is about self-determination generally. At the same time, it is about the value of diversity. So all in all it is a very special document.
II International Context
Given that the Declaration is an international document, I turn first to the significance of the Declaration in the international context as that necessarily colours the significance of the Declaration to New Zealand. The easy answer is that the Declaration is not a treaty at international law and therefore is not binding on states.3 At most, as a resolution of the General Assembly, it has moral force for those states that voted for it or later endorsed it, like Australia, Canada, the United States and New Zealand.4 But that would be far too glib for at least three reasons.
First, there has been a trend in recent years to move towards promoting declarations rather than trying to negotiate multilateral treaties on contentious topics, which are difficult to deal with in a formal binding instrument like a treaty. For example, as well as the Declaration on the Rights of Indigenous Peoples, we have seen the 2016 New York Declaration on Refugees and Migrants and two subsequent global compacts dealing with those two groups.5
The work that was undertaken on declarations such as these, and the consultation processes adopted, must at least make these types of declarations what we call soft law — in other words, not strictly binding, but nevertheless having legal significance.6 And because the Indigenous Declaration was formally adopted by the General Assembly — one of the only international bodies with universal membership— and by so many positive votes, I would suggest a very strong form of soft law.7 There were only 11 abstentions and only four negative votes and those four states all later endorsed the Declaration.8
Secondly, there is a possibility that the Declaration is already or may become customary international law and therefore binding on all states, whether they voted in favour of it or not.9 Customary international law, as the name suggests, is law based on the custom of states — a custom that is near universally practised and one that is practised because states believe they are bound by law to do so. It binds all states, regardless of whether they have agreed to be bound by it.10
I doubt that the whole of the Declaration meets the test for being customary international law quite yet but certainly some parts of it may do so.11 And there is the possibility that other parts will follow. 12 Indeed, the more that states introduce measures to implement the Declaration and the more courts in various jurisdictions refer to it, the more likely it is that it will become customary international law.
And finally, the Declaration has to be considered in the context of various treaties that cover some of the same ground as the Declaration. In that sense the Declaration can be seen as a formal acknowledgment and articulation of state obligations to indigenous peoples already covered by those treaties.13 I include in this the various human rights treaties and many of the labour and environmental treaties, including those dealing with climate change. Many of the states that voted for the Declaration or that subsequently endorsed it are parties to those treaties.
Starting with the environmental treaties, I include these because of the special relationship indigenous peoples have to their environment and the link between the environment and their cultural and spiritual identity. Stewardship of the environment is a quintessentially indigenous value, as is the care for and duty to future generations. These values are also the foundation of many of the environmental treaties, particularly those relating to climate change and conservation.14 Indeed, at the Climate Action Summit in New York in September 2019 it was recognised that indigenous peoples’
knowledge is essential to curbing the effects of climate change — and thus that it is crucial that indigenous peoples’ rights be protected, including their rights to participate fully in policy decisions.15
The main rights on environmental issues in the Declaration are covered in arts 25, 26 and 29. Article 25 provides for the right to maintain and develop the distinctive spiritual relationship with traditionally owned and occupied lands, seas and resources, in light of responsibilities to future generations. Article 26(3) provides that legal protection must be given to land, with due respect to the customs and traditions of indigenous peoples. Article 29 provides that indigenous peoples have the right to the conservation and protection of the environment.
There is also alignment with existing labour treaties. The eight fundamental International Labour Organization (ILO) treaties, which are almost universally ratified, cover freedom of association, the elimination of all forms of forced labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation.16 The Declaration in art 17 covers the right of indigenous peoples to enjoy all rights established under international and domestic labour law and their right not to be subjected to any discriminatory conditions of employment. Article 17 also specifically protects indigenous children from economic exploitation, including
hazardous conditions and work that interferes with their right to education and development.
More generally it is worth noting at this point that the ILO has been at the forefront of indigenous issues17 and created its own Convention concerning indigenous and tribal peoples in independent countries in the early 1990s.18 Going beyond the usual ILO focus on labour-related rights, this Convention sets out general policies (a right to development, recognition of traditional values and practices, that the full measure of rights are to be accorded to indigenous and tribal peoples, and special measures to safeguard the persons, institutions, property, labour, cultures and environment of indigenous and tribal peoples), rights to land, rights in employment, and rights to education that upholds the culture and traditions of the peoples. While only 23 countries have ratified it, it remains the only treaty specifically on indigenous rights, and so holds value in that respect.
Turning now to the human rights treaties,19 the first article of the Declaration provides explicitly:
Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.
Subsequent articles explicitly provide for particular rights. Article 21 provides for indigenous peoples’ right to improvement of economic and social conditions, with
particular attention to be paid to the rights of women, children and persons with disabilities — incidentally three groups of people who fall under separate human rights treaty regimes.20 Another example is art 14 of the Declaration, which provides that indigenous children have the right to all levels and forms of state education, without discrimination — a right also contained in art 28 of the Convention on the Rights of the Child.
III Need for Specialist Regime
I should make it clear that when I say the Declaration to an extent may merely articulate state obligations that already exist under treaties, this is not to say that it is unimportant or that this is the complete picture. As recognised in the preamble to the Declaration, indigenous peoples around the world have suffered from historic injustices arising in particular from colonisation and loss of their traditional lands. They have, as the Declaration acknowledges, therefore been prevented from enjoying the full exercise of their rights and in particular their right to development.
Beyond the loss of land, other notable examples of past injustice include the stolen generation policies in Australia,21 abuse of indigenous children in state care in New Zealand22 and the disproportionate violence against indigenous women in Canada.23
Linked to this is the weakening or destruction of traditional authority, loss of control over resources, lower socio-economic status, loss of languages, poor health outcomes and the disproportionate presence of indigenous peoples in criminal justice systems around the world.
Historic grievances have modern-day repercussions and this too is recognised in the Declaration — arts 8, 11, 20 and 28 all address redress for past injustices. For instance, art 11 relates to redress for cultural, intellectual and spiritual property taken without consent and art 28 relates to redress for loss of lands.24
Where groups have been marginalised or need special protection, it is not enough to rely on general human rights instruments, particularly where the issue concerns redress for past wrongs. An instrument that concentrates on their particular needs and requires states to focus on those groups is required. This has long been recognised in the international human rights system through, for example, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities. And this is now recognised, through the Declaration, with regard to indigenous peoples.25
One of the advantages of the Declaration is that it has brought indigenous rights clearly onto the agenda of the UN’s human rights body: the Human Rights Council. A special body, called the Expert Mechanism on the Rights of Indigenous Peoples, was set up as a subsidiary body of the Human Rights Council in 2007.26 The Expert Mechanism’s role is to advise the Council on the rights of indigenous peoples as set out in the Declaration
and to assist states to achieve the goals of the Declaration.27 This connection means that reports from the Expert Mechanism are also on the agenda for other UN human rights monitoring bodies. There is not, however, unlike for other human rights bodies, a regular reporting requirement on states with regard to the Declaration. Rather, states or indigenous groups can request a report.28
For completeness, I also mention that other UN bodies, predating the Declaration, were also established to progress indigenous rights. One is the UN Permanent Forum on Indigenous Issues, a high-level advisory body to the Economic and Social Council, established in 2001. Another is a Special Rapporteur on the rights of indigenous peoples, appointed by the Human Rights Council in 2001. The Special Rapporteur carries out fact-finding missions in specific countries, conducts thematic studies, and provides expert testimony before regional human rights courts and policy advice to development-centred and other non-UN international organisations.29
Having these various and multiple mechanisms dealing with indigenous peoples gives rise to a common criticism facing the UN (and other large organisations): the silo effect.30 One possible consequence of the silo effect is that agencies do not talk to each other and end up doing the same work twice, but potentially inconsistently. Another is that particular issues that seem to be on various bodies’ agendas are not advanced or progressed under the false assumption that the other silos are doing something
about it. This effect is partially mitigated by measures to achieve coordination. 31 For example, one of the Permanent Forum’s roles is to promote integrated and coordinated activities related to indigenous issues within the UN system.32
Having various bodies in the international system concerned with indigenous issues and rights does, however, have the advantage of putting indigenous rights clearly on the international agenda.33 Another advantage is that it leads to the development of what can be termed international indigenous rights “jurisprudence”. One example is that the body monitoring the International Covenant on Economic, Social and Cultural Rights (ICESCR) has authoritatively interpreted art 15(1)(a) of the ICESCR — the right to take part in cultural life — as comprising indigenous peoples’ collective right to take part in cultural life, including the right to lands traditionally owned or used.34 Another example is the recognition of the importance of indigenous people in relation to climate change by the Climate Action Summit referred to above. What these examples have in common is the growing recognition of the collective nature of indigenous rights and the importance of the protection of indigenous rights not only for indigenous peoples but for the world more generally.
IV Collective Rights
Another very significant feature of the Declaration is that the rights protected under the Declaration are not just individual rights but also collective rights. A bit of history is in order to explain why I see this as significant.
The modern human rights system arose out of the atrocities of the Second World War. The foundational human rights document, the Universal Declaration on Human Rights,35 does not contain any specific collective rights and does not even refer to self- determination.36 During the drafting process of the Universal Declaration, there was some push for some collective rights to be included but this did not get much traction.37 In any event, the types of collective rights envisaged were not those of indigenous peoples.38
The right to self-determination did, however, make its way into the two main human rights instruments that followed the Universal Declaration: the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR.39 The self-determination right must encompass collective rights and this means that collective rights are recognised under these human rights treaties. In this sense, therefore, the Declaration arguably contains nothing new on this point, although it certainly gives more substance to what collective rights encompass.40
Despite the inclusion of the right to self-determination in those human rights treaties, there has been a struggle in the UN human rights system to work out the proper approach to recognising collective rights at all and in particular where they might be seen as conflicting with individual rights. Indeed, Associate Professor Claire Charters has suggested that the current international human rights framework is a manifestation of ongoing colonial domination that does not respect indigenous philosophical or legal traditions.41
There has been more thinking about these issues in states where their constitutions recognise both custom, by its nature collective, and human rights, most of which are set out as individual rights. 42 Even in such countries there have, however, been inconsistencies in approach. A clear mechanism for balancing individual and collective interests, especially in the setting of indigenous rights, is still very much a work in progress. The Declaration means that the international human rights system generally must now tackle this issue and ensure states are compliant with their obligations under human rights treaties with regard to the recognition of collective rights. I do not pretend to have an answer on the proper approach to the recognition of collective rights and their relationship to individual rights but I will make some tentative comments.
It seems to me that cases analysing conflicting rights, albeit conflicting individual rights, might be useful in working out how potentially conflicting individual and collective rights can be balanced.43 Such an approach would give proper weight to collective rights as rights in their own regard. At the beginning of the analysis both the individual and collective right would be accorded equal weight. Exactly what each right protects
and what risks are associated with giving one right precedence over the other in the particular circumstances would then be examined. This consideration would include the risk that a customary practice or right may be lost or become meaningless if individual freedoms are given primacy.
I think too that the three-stage analysis proposed by Associate Professor Charters will be very helpful. She suggests dividing indigenous rights into three categories to ensure that human rights evolve to accommodate all types of indigenous collective rights.44 Her first category is indigenous individual rights, meaning rights that belong to all individuals, including indigenous individuals; for example, non-discrimination. Her second category is indigenous peoples’ human rights, meaning the rights the collective has so individuals can flourish in the same way individuals from the dominant culture flourish; for example, minority rights, rights to property and rights to culture. The third category, and arguably the most important, is peoples’ collective rights to authority — that is, rights arising from indigenous peoples’ historical authority over their territories.
I also note that indigenous peoples themselves would have customary mechanisms for balancing collective and individual rights that could be drawn upon in working out an appropriate balance. Indigenous societies were after all made up of individuals. Such mechanisms could well provide lessons for the human rights system more generally.
V Meaning of Self-Determination
The right to self-determination, while encompassing collective rights, must, however, be wider than this.45 Another challenge, therefore, both at the international level and at the state level, will be to work out what the right to self-determination contained in the Declaration (and indeed in the human rights treaties) means in practice for both
indigenous peoples and the state.46 This is particularly the case in relation to indigenous peoples who remain part of other states, such as Māori in New Zealand. The position is even more difficult for those indigenous peoples who are split between two or more states because of the vagaries of colonial border arrangements, such as the Saami people who are spread across Norway, Sweden, Finland and parts of Russia.47 The issue of what self-determination means for indigenous peoples in these circumstances has been brought into sharp focus by the Declaration.
I do not intend to make any further comment on self-determination, other than to say that consideration of Associate Professor Charters’s third category of indigenous rights will be vital in any analysis of state obligations to provide self-determination for indigenous peoples within those states.
VI Intersection of Indigeneity and Other Groups
Another issue that will arise with regard to the Declaration relates to the intersection of indigeneity and other groups, and in particular other minority groups. The Declaration does recognise that there are groups within indigenous peoples who may be particularly vulnerable. Article 22 provides that particular attention should be paid to the rights and special needs of indigenous elders, youth, children and persons with disabilities in implementing the Declaration. At the international level, there is
some recognition that people at the overlap of intersections such as gender and indigeneity face particular challenges, as recognised by the Human Rights Council’s 2014 compilation of references to indigenous women and girls by the Expert Mechanism.48
With regard to gender, the Declaration provides that all rights and freedoms are guaranteed equally to male and female indigenous individuals. 49 The position of women has often been considered a “sticking point” in this context, especially where traditional authority structures and customs might be seen as discriminatory.50 In this regard, I note the issue of the adverse effect of colonisation on traditional authority structures, particularly as they relate to women. Commentators suggest that colonisation and the associated Western gender hierarchy norms changed the balance between men and women in indigenous and other pre-colonial societies.51 This has deprived women of their traditional authority. These issues are to be aired in New Zealand before the Waitangi Tribunal next year in the mana wāhine kaupapa inquiry.52
VII The Declaration in New Zealand
I now move onto the significance of the Declaration for New Zealand. I start by acknowledging the long-lasting effect of colonisation on New Zealand’s indigenous
people. Even today, Māori suffer inequities in all areas, including in health, 53 education,54 employment,55 and justice — both in terms of incarceration and across the justice system.56 That this is the case highlights the importance of the Declaration in New Zealand, although as I said earlier, the Declaration has much wider significance than righting past wrongs.
A Government Response to the Declaration
As I noted above, New Zealand originally voted against the Declaration. This was not, it said at the time, because it was opposed to the principles and aspirations of the Declaration but because of concerns about three particular articles57 and, incidentally, probably based on a misunderstanding of what those articles required. 58 In 2010, New Zealand reversed its position and endorsed the Declaration, stressing that it
57.2 per cent. Education Counts “School leavers with NCEA level 3 or above” (September 2018)
<www.educationcounts.govt.nz>. See also Statistics New Zealand “18-year-olds with higher qualifications” (February 2017) <http://archive.stats.govt.nz> .
<www.corrections.govt.nz>. Comparably, Māori only comprise 14.9 per cent of the national population. Statistics New Zealand “Major ethnic groups in New Zealand” (29 January 2015)
<www.stats.govt.nz>. In 2015, the Police Commissioner admitted to “unconscious bias” resulting in Māori people being more severely punished than non-Māori for similar transgressions: Action Station They’re our Whānau (3 October 2018) at 10–17. See also Elizabeth Stanley and Riki Mihaere “The Problems and Promise of International Rights in the Challenge to Māori Imprisonment” (2019) 8 Intl J Crime, Justice & Social Democracy 1.
accorded with government policies related to the Treaty of Waitangi (the Treaty or te Tiriti) but also stressing the Declaration’s non-binding and aspirational nature.59
A significant development occurred in March 2019: Cabinet gave its approval for the Minister of Māori Development to lead a process to develop a national plan of action on New Zealand’s progress towards the objectives of the Declaration.60 The Cabinet Paper recognises that the Declaration contains principles and duties consistent with the Treaty. It is said that New Zealand is committed to the common objectives of the Treaty and the Declaration, alongside existing legal and constitutional frameworks.61 The Paper notes that the Declaration is increasingly being raised before international monitoring bodies and that developing a plan of action will demonstrate New Zealand’s continuous commitment to the international framework on indigenous issues and to its implementation in New Zealand.62 This includes ensuring greater coherence across government to delivering beneficial outcomes for Māori.63
So, although at this stage there is only a plan to develop a plan, it nevertheless shows that we have reached a stage where the Declaration is seen as playing a significant role in the government’s indigenous policies.
B The Status of the Declaration in New Zealand Law
I move now to the Declaration and courts and tribunals. First I would suggest that the fact that the Declaration is not a treaty is in fact somewhat irrelevant in the New Zealand context. To explain why this is so requires a brief explanation of the status of international law in New Zealand.
Treaties are negotiated by the executive arm of government and, under international law, are binding on New Zealand once ratified.64 New Zealand is, however, what is
59 (20 April 2010) 662 NZPD 10230.
60 Cabinet Māori Crown Relations: Te Arawhiti Committee Developing a Plan on New Zealand’s Progress on the United Nations Declaration on the Rights of Indigenous Peoples (18 March 2019).
61 At [2].
62 At [16].
63 At [17].
known as a dualist state. This means that treaties entered into by New Zealand are not automatically part of domestic New Zealand law. They only become part of domestic law if enshrined in legislation.65
This is not the full picture, however. First, customary international law is automatically part of the common law unless inconsistent with a statute.66 But, as I have said, the whole of the Declaration has not reached that status yet. More importantly, however, the courts do refer to treaties that New Zealand has entered into but have not been enshrined in legislation and thus are not part of New Zealand domestic law. Courts can and do refer to such unincorporated treaties when interpreting New Zealand statutes.67 Unincorporated treaties can also be considered in developing the common law and deciding cases where an international dimension is present.
The courts do not treat unincorporated treaties as directly binding in New Zealand law because of course they are not. But the courts do apply a presumption that Parliament did not intend to legislate contrary to international law. There are two ways this presumption plays out. The first relates to the interpretation of statutory provisions. Applying the presumption, provisions will be interpreted to be consistent with international law (as found in both treaties and custom), if possible. 68 If it is not possible, the statute prevails.69 The second relates to a situation where statute law gives discretion to the executive arm of government. The courts have held that such discretionary powers must be exercised in accordance with New Zealand’s international obligations, even if those obligations are not incorporated into statutes.70 Again, this is subject to any contrary provision in a statute.
It is not too much of a stretch to presume that Parliament also intended to legislate in a manner consistent with a declaration, like this one, that was passed by the UN General Assembly by such a large majority and that the executive took a positive decision in 2010 to endorse and a further decision this year to develop an implementation plan for. I would suggest, therefore, that the courts may well treat the Declaration in the same way as unincorporated treaties.71 This is especially the case where, as I discuss later, the Declaration in fact elaborates on rights already enshrined in the Treaty.
Further, the rights in the Declaration are in any event in large part contained in human rights and other international treaties to which New Zealand is a party. Indeed, at least some of the rights in the Declaration have been incorporated in New Zealand legislation under the New Zealand Bill of Rights Act 1990. A few brief comments on that Act. It does not incorporate any of the rights outlined in the ICESCR and it does not incorporate all of the rights in the ICCPR.72 For example, there is no general property right in our Bill of Rights Act. Nor is there a privacy right or a right to self-determination. Collective rights are not explicitly referred to in our Bill of Rights Act but legal persons are covered by it,73 and that must include, for example, Māori corporations and other indigenous entities. And there are some rights in the Bill of Rights Act that can be seen as relating to collectives, such as the right to freedom of association.74
It might be that the Declaration could lead to a more expansive interpretation of the Bill of Rights Act than we have seen to date and one that is more responsive to interpreting the rights already domestically protected under the Bill of Rights Act as including collective rights.
... to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights”.
I also note for completeness that there will be other pieces of legislation that relate to matters covered by the Declaration. I refer for example to the Resource Management Act 1991. Section 6 recognises the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga as a matter of national importance. Section 7 of that Act provides that decision-makers must have “particular regard” to kaitiakitanga.
C The Treaty of Waitangi
Moving now to the position of te Tiriti. First, a few general (and necessarily incomplete) comments on the position of the Treaty in New Zealand’s legal landscape. We have come a long way since it was declared to be a “simple nullity” in 1877. 75 Significant issues relating to the Treaty are recognised by the Senior Courts Act 2016 as matters of general and public importance in relation to leave applications to the Supreme Court. 76 The Waitangi Tribunal has been set up to examine breaches of te Tiriti and,77 as well as looking at specific claims, the Tribunal has examined more broad-reaching claims such as the recent health kaupapa claim.78
The Treaty has also been increasingly enshrined in legislation.79 For example, anyone exercising any powers under the Resource Management Act to manage the use, development and protection of natural resources has to “take into account” the principles of the Treaty.80 These principles have been held to include, among other things, partnership, active protection, autonomy, equity and redress. 81 The exact wording used in provisions is important in determining the extent of obligations related
to the Treaty under the various statutes that include references to it.82 The terminology “take into account” is not as strong as “give effect to”, which is how the obligation is framed in some legislation, such as the Conservation Act 2004.83 But whatever the wording used, I think it is fair to say that the courts will interpret legislation to give substance to the obligation and that legislative incorporation of the Treaty will not be regarded as mere window dressing.84
Further, even when not enshrined in legislation, te Tiriti is likely to be used by the courts in a similar way to unincorporated treaties. This means it will be presumed that Parliament does not intend to act in a manner that is contrary to the Treaty, even if the Treaty is not mentioned in the particular statute.85 Statutes would be interpreted in accordance with that presumption if possible. Further, any broad discretions given to the executive under legislation would be presumed to be intended to be exercised consistently with te Tiriti. Like unincorporated international law treaties, te Tiriti can also be used in the development of the common law.
I mention here for completeness that, aside from this, tikanga should in any event have been regarded as part of the common law, provided it was not inconsistent with a statute and met certain tests, which I suggested in Takamore v Clarke would need to be modified to reflect modern thinking on indigenous issues. 86 Tikanga has not, however, been seen until recently as part of the common law, and the legal system has remained resolutely based on the British system forced on Maori in the colonial period. How tikanga might now be incorporated into the common law and the implications of
85 At 521.
[2012] NZSC 116, [2013] 2 NZLR 733.
this process, both for tikanga and for the common law, are, however, beyond the scope of this speech.87
D The Declaration and the Treaty
The most important point to my mind is that the Declaration provides in art 37 and in three places in the preamble that states should honour rights affirmed in treaties with indigenous peoples. Indeed, the preamble says sometimes the rights affirmed in such treaties will be of “international concern, interest, responsibility and character”. It is not clear in what circumstances any breach of such a treaty would be of international significance. Perhaps all that is meant is that some treaties with indigenous peoples will be treaties at international law, a technical matter on which there is some debate.88 It is beyond the scope of this article to consider this debate with regard to the character of the Treaty.89 What is important for our purposes is that New Zealand’s endorsement of the Declaration means it has further committed to honouring te Tiriti.90
Another important point is that the Declaration in any event reflects obligations contained in te Tiriti. For example, rangatiratanga91 can be seen as reflected in art 3 of the Declaration, which provides for self-determination. Article 4 of the Declaration expands on this as including the right to autonomy and self-government in matters relating to internal and local affairs. Article 5 goes further and reflects a kind of balance between rangatiratanga and kāwanatanga — that indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining the right to participate fully in the political, economic, social and cultural life of the state.
Another example of congruence between te Tiriti and the Declaration is that a central feature of the Declaration is the connection between indigenous peoples and the land. Whenua, mentioned in art 2 of te Tiriti, can be related to arts 25 and 26 of the Declaration, which refer to the spiritual relationship of people with traditionally owned and used lands and resources, and the right to use, develop and control lands and resources traditionally owned and occupied.92
We can also see the Treaty principles of partnership, consultation, good faith and equity referred to in the Declaration. For example, the preamble solemnly proclaims that the Declaration is a standard of achievement to be pursued in a spirit of partnership and mutual respect, and arts 19 and 32 provide that states shall consult and cooperate in good faith with indigenous peoples through their own representative institutions in order to obtain their consent before adopting laws or policies that may affect them.93
This means the Declaration aligns with te Tiriti, as was recognised by the Hon Pita Sharples when New Zealand endorsed the Declaration and in the recent Cabinet Paper.
But the Declaration is much more detailed than the Treaty and in this sense provides elaboration of the Treaty rights and obligations. For example, art 2 of te Tiriti provides for te tino rangatiratanga over whenua, kainga and taonga. Kainga is reflected in the articles of the Declaration that prohibit forcible removal of people from their territories. 94 Taonga is reflected in the emphasis in the Declaration on cultural traditions and customs, including sacred sites, designs, ceremonies, technologies and art, and the right to use and control ceremonial objects, as well as the right to provide education in the indigenous language in a manner appropriate to cultural methods of teaching and learning.95
E How the Declaration Has Been Used before the Courts
Finally, I come to how the Declaration has been used in courts in New Zealand.96 Rather than going through the case law I will try to categorise the possible ways the Declaration has been and could in the future be used. But I do not suggest this is necessarily a definitive list.
First, there are the cases where counsel have relied on the Declaration in submissions but where the judgment does not mention it or only does so to record the submission but without making any comment.97 In most cases this will be because the decision is based on the most authoritative source (such as a statutory provision) and it is not necessary to refer to documents, like the Declaration, that are supportive but are not
part of New Zealand law.98 And a tip here for advocates: always refer first to the most authoritative source and, indeed, often you can stop right there.99
The second type of case is where the Declaration is relied on by counsel but the court or tribunal considers the Declaration to be inconsistent with a New Zealand statute or, alternatively, that the interpretation of the effect of the Declaration contended for by the party is inconsistent with a statute.100 As statutes prevail and the Declaration is not binding in law, this conclusion necessarily means the submission based on the Declaration will be rejected.
The third type of case is where the Declaration is relied on to interpret a statute. I venture to suggest this will be most successful where this submission is combined with reference to the Treaty and particularly where the Treaty is referred to in the legislation. This would enable the Declaration to be used to flesh out the obligations in the Treaty in some of the ways I have just discussed. And this could have quite a significant effect on adding more legal weight to both the Treaty and the Declaration.
The fourth type of case is where the Declaration is used to argue that executive discretions and policies should be aligned with the Declaration.101 Assuming there is
nothing in a statute that prevents this, arguments such as these could be successful in the same way that arguments based on unincorporated treaties can succeed. The more the Declaration is referred to by the executive as being a cornerstone of indigenous policies,102 the more likely it is that such arguments could be successful.
The fifth type of case is a subset of the fourth and it is where a party wishes to use the Declaration to argue that the government should change its current indigenous policies and procedures. A court or tribunal would reject such a submission where it considers that what is being done by the government is already aligned with the Declaration. And, once the proposed government plan for the implementation of the Declaration is in place, arguments that aspects of that plan should change would probably face real difficulties. This is because the process for putting in place the plan involves extensive consultation. It is also because there will be multiple ways of complying with the Declaration and the courts would usually respect the legitimate choices made, subject possibly to there being no judicially reviewable issues with the process followed. Further, there will inevitably be other wider policy issues and budget constraints that may mean the courts are not the most suitable vehicle for arguments about policy choices. And, of course, if such policies and procedures are embedded in legislation, the courts cannot act contrary to or overturn that legislation.
The final type of case is where the Declaration is one of the sources used to argue for the development of the common law.103 This is probably one of the most promising
ways the Declaration could be used. But any development of the common law will have to accord with the common law method, which favours incremental change. The most promising aspect of this could be the incorporation of tikanga into the law of New Zealand. This is because, as I said earlier, custom should in fact be part of the common law already.
What is clear from how the Declaration has been used so far in our courts and tribunals is that the more parties cite the Declaration and the more the Crown has to respond to the submissions, the more the Declaration will become embedded into New Zealand’s legal framework.104 The work the government is doing on the plan to integrate the Declaration into its indigenous policies across all of government can only accelerate this trend.
approach in Wakatū, see Dwight Newman “Wakatū and Transnational Dimensions of Indigenous Rights Discourse” [2019] NZ L Rev 61 at 66; and compare Charters, above n 96, at 109.
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URL: http://www.nzlii.org/nz/journals/TaiHaruruJl/2020/5.html