The National-NZ First coalition agreement confirms the government will not recognise the United Nations Declaration on the Rights of Indigenous Peoples as having any binding legal effect on New Zealand. What does this really mean?
What is the United Nations Declaration on the Rights of Indigenous People?
The UNDRIP is the most comprehensive international instrument on the rights of indigenous people. It provides a universal framework of minimum standards for indigenous people worldwide. The declaration was drafted and debated for over two decades before being adopted by the United Nations General Assembly on 13 September 2007, by a majority of 144 member states. Four countries voted against (Australia, Canada, New Zealand and the United States) and 11 countries abstained. Since its adoption, the four countries that voted against the declaration reversed their positions to support it.
Is the UNDRIP legally binding on countries?
The terms “declaration”, “convention” and “treaty” are terms that are thrown around the international stage, but what do they actually mean and what differentiates them from one another?
Declarations are generally not legally binding. Instead, they serve as an indication of the commitments of states of certain aspirations. Declarations often originate from resolutions adopted by the UN General Assembly. Although declarations carry no formal legal obligations, they may eventually become binding on states out of custom. This is referred to as customary international law and occurs when sufficient states act as though something is the law through its usage. For example, the 1948 UN Declaration of Human Rights.
Conventions are formal agreements between countries that are legally binding under international law. When a convention is ratified by sufficient states, it is entered into force and becomes legally binding on the states that have signed and ratified it. Hence, conventions are stronger than declarations. Conventions are also referred to as “agreements” or “treaties”. When a government ratifies a convention or a treaty, it becomes part of the country’s domestic legal framework. For example, the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which was ratified by New Zealand in 1985.
So, as a declaration, the UNDRIP is not legally binding on any country under international law. It merely provides a set of agreed upon standards to protect the rights of indigenous people. Many states have signed the declaration and provided their support for it, without making any tangible changes domestically. Although arguably, the UNDRIP has put pressure on states to make changes (not on the basis of legal obligation but on moral grounds), the non-binding nature of the declaration means it is seen as largely symbolic by many states.
What is New Zealand’s historical position on the UNDRIP?
Despite being regarded as a global leader in indigenous rights, New Zealand was one of only four countries that voted against the UNDRIP at the time of its adoption in 2007. The Helen Clark-led Labour government’s initial rejection of the UNDRIP was considered highly controversial at the time. In 2010, the John Key-led National government reversed the decision and provided support for the declaration. Now, in 2023, the National-led government has confirmed that it will not recognise the declaration as having any binding legal effect on New Zealand.
Why was it rejected by the 2007 Labour government?
The Labour government’s primary explanation for opposing the UNDRIP was on the basis that four articles contained in the declaration were “fundamentally incompatible with New Zealand’s constitutional and legal arrangements, and Treaty settlement policy.”
These articles are:
(i) Article 26 on lands, territories and resources;
(ii) Article 28 on the rights to redress; and
(iii) Articles 19 and 32 on obtaining free, prior and informed consent.
The minister of Māori affairs at the time, Parekura Horomia said that Article 26 in particular “appears to require recognition of rights to land now lawfully owned by other citizens, both indigenous and non-indigenous. This ignores contemporary reality and would be impossible to implement.” The Minister also raised concerns about the declaration creating different classes of citizenship and said it would give indigenous people veto rights over parliamentary decision-making that was not held by others. In other words, the Labour government argued that the declaration breached the Treaty of Waitangi because it would give Māori special rights over other citizens.
Why was this reversed by the National government in 2010?
In 2010, the National-led government (in coalition with the Māori Party) reversed New Zealand’s initial vote against the UNDRIP and announced its support for the declaration. John Key argued that while the declaration was non-binding, it would help build better relations between Māori and the Crown. The then Māori Party co-leader and minister of Māori affairs, Dr Pita Sharples, signed the declaration on behalf of New Zealand, in New York.
What about the He Puapua report?
He Puapua was a report commissioned in 2019 by the Labour-NZ First government to investigate how New Zealand could implement its commitments to the UNDRIP. It outlined a roadmap to achieve what was called “Vision 2040” – a vision of realising the UNDRIP by 2040 – the 200th anniversary of the signing of the Treaty of Waitangi.
The report’s recommendations included, among other things, a separate Māori court system, health system, parliament, Māori wards, compulsory te reo Māori in schools and strengthening the legality of the Treaty of Waitangi by putting it into law. It also recommended that Māori co-design and/or co-govern all Māori services. The report caused significant controversy and allegations from National and Act of racial “separatism” and the creation of a two-tiered governance system. In return, the Labour government stressed the fact that He Puapua was merely a report, and not government policy.
Act Party leader David Seymour called on all parties to renounce the UNDRIP, claiming that “Helen Clark got it right when her government refused to sign up. John Key got it wrong when his government signed the Declaration. He may have thought it was just symbolism, but it is now creating great division with the He Puapua report demanding it transform New Zealand’s constitutional arrangements with ‘declaration compliance’ by 2040.”
In 2023, one of the provisions of the National Party-NZ First coalition agreement stipulates “stopping all work on He Puapua”.
So what happens now?
Ultimately, the National-NZ First coalition agreement confirming that government will not recognise the UNDRIP as having any binding legal effect on New Zealand will have nothing more than a symbolic effect. This is largely because the declaration does not have any binding legal effect anyway, so such confirmation has little impact on our domestic framework. Since the declaration lacks the legal capabilities to have any practical effect in New Zealand, the sovereignty of our domestic framework, including the Treaty of Waitangi, supersedes an international declaration such as the UNDRIP.
However, if New Zealand were to reverse its position again and withdraw from the declaration, it would be the only country in the world to reject the UNDRIP. This could result in some damage to our international reputation as a leader on the global stage. Any decision to ignore or withdraw New Zealand’s commitment to the UNDRIP may also raise concerns over whether commitments to other international declarations and conventions would also be ignored or retracted in the future.
Overall, the largely symbolic nature of either endorsing or rejecting UN declarations raises questions about their effectiveness in the international community. While these declarations often place moral and political obligations on states, their impact on shaping meaningful policy remains limited. The lack of binding enforcement mechanisms leaves it open for states to prioritise national interests over collective international commitments. The international community, including New Zealand, continues to face the challenge of translating rhetorical support into tangible change. There is a clear need for more robust mechanisms that extend beyond symbolic gestures, in order to foster substantive global cooperation to address the world’s most pressing challenges.
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