THE UN DECLARATION AS A BENCHMARK

[1] In any discussion of constitutional transformation, Matike Mai o Aotearoa (the Independent Iwi Working Group) accepts the importance of the United Nations Declaration on the Rights of Indigenous Peoples.  Like other documents such as the Mataatua Declaration it provides an international benchmark against which the exercise of rangatiratanga may be defined and measured.

The rights it espouses, and particularly the right of self determination, are living rights that inhere in humans as peoples, not as subjects of some political order.  The UN Declaration is therefore an absolutely appropriate baseline to be considered in the development of a new and inclusive constitution.

It is an international mirror of rights and authority that Māori have always had, and is thus an adjunct to Te Tiriti and what it should mean in terms of self determination as both a human right and a capacity to once again make our own decisions.

Most of all the Working Group acknowledged the mana that Māori accord the Declaration –

“We are now trying to use the UN Declaration whenever we can.  I remember when James Anaya (the former UN Special Rapporteur on the Rights of Indigenous Peoples) was here he said something like, ‘It’s your rights. It’s your Declaration.  Make it work for you.’  And it does recognise all those things we talk about in the treaty.”

“We wanted it (the Declaration) in our Deed of Settlement, but the Crown refused.  But we still see it as a kind of supplement to Te Tiriti and He Whakaputanga … It’s an international statement of the things our people have been saying since 1835, and can be another benchmark for what we are talking about now.”

Although the Declaration is concerned with existing relationships with States that are quite different to those contemplated in this constitutional transformation process, it is nevertheless relevant because it is the sum of what literally thousands of Indigenous Peoples have regarded as a minimum international set of human rights.

Symbolically it is also important because the inclusion of the right to self determination was only achieved after years of struggle by Indigenous Peoples against governments (including the government of New Zealand) that sought to deny it.

The success of that struggle can give hope and reassure people that the difficulties involved in constitutional transformation can be overcome.

Next week we will begin considering indigenous constitutions in practice. 

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[1] Twentieth edited extract from pp. 62 – 63 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa

UN DECLARATION - THE ARTICLES

[1] The United Nations Declaration on the Rights of Indigenous Peoples comprises 46 articles.  In the course of the hui held by Matike Mai o Aotearoa between 2010 to 2015 a number of those articles were referred to, including the Preambular Statement –

“Recognising the urgent need to respect and promote the … rights of Indigenous Peoples which derive from their political, economic and social structures and from their cultures spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources …”

The particular articles people felt were most relevant were

“Article 3 – Indigenous Peoples have the right to self-determination.  By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 36 – Indigenous Peoples have the right to recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with the States of their successors and to have States honour and respect such treaties, agreements or other constructive arrangements.”

For many participants the Article 3 definitions of self-determination were also apt descriptions of rangatiratanga.  In their view it therefore had real relevance in the development of a tikanga and treaty-based constitution –

“Really rangatiratanga is just us determining our own destiny which Article 3 talks about.  I’m not fussed whether there are all sorts of legal arguments about whether the Crown will let the Declaration be used … or even when self-determination really applies because I just see it as another statement about our rights, and in a way that’s what all the kōrero is about.”

“When our tūpuna went overseas in the early 19^th century and came back with all sorts of new ideas about farming and roading and so on, they also came back with new political ideas about how Hapū might organise themselves to meet the new times they were in … we’ve never been afraid of claiming international precedents and that’s all the Declaration is – another way of helping see our rights and our tino rangatiratanga at an international level as well as here at home.”

“The Declaration probably isn’t perfect, but like Te Tiriti it’s there for us to use … and if we can use it like Te Tiriti by holding on to what it says about our rangatiratanga or self-determination and then trying to give voice to it, that will be of real value to this mahi.”

Article 36 was considered particularly important because of the Crown’s ongoing use of Te Tiriti as a treaty of cession

“That Article 36 is really interesting when it talks about enforcement, because the Crown thinks it’s enforcing Te Tiriti, but it only does that because it says we let them take our mana.  That’s not enforcing Te Tiriti, it’s enforcing what the Crown wanted it to be.”

More on this next week.

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[1] Nineteenth edited extract from pp. 62 – 63 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa

INTERNATIONAL PRECEDENTS - THE UN DECLARATION

[1] The United Nations Declaration on the Rights of Indigenous Peoples was discussed at every hui held by Matike Mai o Aotearoa (the Independent Working Group on Constitutional Transformation) and was referred to in most of the written submissions received.  Although the Crown has attempted to downplay its importance (after initially declining to recognise it at all) it continues to have growing resonance.

Because a number of Māori contributed to the drafting of the Declaration, many of our people understand its relevance here as well as overseas.  It is perhaps the most well-known of all international human rights’ instruments, and those involved in its drafting were often referred to.

The respected kuia Erihapeti Murchie was one of those who was actively involved in the early drafting stages.  At a crucial point in the process in 1992 she stated –

“As Ngāi Tahu and as a Māori I see the Declaration as an international expression of the rights we have through whakapapa and the treaty.  

"As an indigenous woman I see it as the first ever international statement about the minimum human rights standards that apply to Indigenous Peoples, including indigenous women and children.  From both points of the view the Declaration will enable us to claim back the right of self-determination and give our people international reassurance that tino rangatiratanga has a political as well as a cultural meaning.”

For several years one of the rangatira who accompanied the Māori delegation to drafting sessions of the Declaration was Sir Archie Taiaroa.  He also saw the links between the Declaration and Te Tiriti as well as its particular relevance to the constitutional change hui which were being held at Hīrangi during the 1990s

“I am reminded of the times when our old people travelled to London and even to what was then called the League of Nations in Geneva to get pressure put on the Crown to honour the treaty.  

"Well we are back here now but in different circumstances, and this time we are drafting something, this Declaration, which is unique because it involves so many Indigenous Peoples.  It’s also unique because it seems to have so much in common with Te Tiriti.  

"It seems that at last the work of all those people who travelled to Europe might be bearing fruit.  If it does, then the Declaration could sit alongside the treaty and maybe the discussions at Hīrangi might lead to further kōrero in the future.”

Matike Mai similarly saw the Declaration as an international expression of what tino rangatiratanga means in political and constitution terms, and they agreed with the view of the Native American jurist John Mohawk –

“The efforts by hundreds of Indigenous Peoples to draft the UN Declaration is another attempt to express in human rights law the basic tenets of being indigenous – a love for and authority with the land, a resolve to enhance and protect the right to be the people of the land, the power to have sovereignty and to be self-determining, and the ancestral obligation to find a good way of relating with others … 

"Because of our history it also means helping us  recover from centuries of dispossession by stating to the world who we are and what we are entitled to … by declaring the human rights, the humanity, that colonisation has for too long denied us.”

We will consider the UN Declaration further next week.

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[1] Nineteenth edited extract from pp. 60 – 61 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa