New Zealand Law Society - International Indigenous Rights in Aotearoa New Zealand

International Indigenous Rights in Aotearoa New Zealand

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Edited by Andrew Erueti
Reviewed by Dr Maria A Pozza and Miaana Walden

This is a unique contribution of informative and critical essays on the effects of the United Nations Declaration on the Rights of Indigenous Peoples in this country. Comprising 232 pages, including the table of contents, index and a copy of the Declaration (as an appendix), the book provides an overview of the challenges of enforcing indigenous rights by relying on international mechanisms within domestic frameworks. The authors place the Declaration at the heart of various issues affecting Aotearoa, such as the Treaty of Waitangi and its policies as well as settlements, regulation of mining activities and the status of Māori children.

Cover of International Indigenous Rights in Aotearoa New Zealand

Essays are presented in a concise manner and cover a wide range of topics, which are essentially divided into three sections. The first section lays down the framework of the issues raised by the Declaration concentrating on the matrix between international indigenous rights and human rights laws. The second section considers the consequences of the Declaration for specific areas of indigenous rights in Aotearoa paying particular attention to the Treaty of Waitangi and interpretative issues within our domestic framework. And the final section outlines the activities by various international institutions and provides an overview of the developments at the international legal-level.

The book concludes that while measures have been slowly adopted in Aotearoa, more needs to be done in order to better align with the Declaration towards greater recognition and protection of indigenous rights here.

Andrew Erueti provides a unique mixed-model interpretative approach when dealing with issues concerning the Declaration, in chapter one. Mr Erueti’s model deviates from the orthodox view that the rights contained in the Declaration are considered to be elaborations of classic human rights by postulating instead that such rights are underpinned by normative considerations between a decolonisation model and a self-determination framework already in operation at the international legal-level. Mr Erueti calls for greater opportunities to be made available to Māori especially through political authority (ie, iwi political authority).

Chapter two by Kirsty Gover explores the interplay between existing presumptions governing Māori interests in New Zealand law (such as the principle of legality) with the Treaty of Waitangi presumption, the presumption of consistency with international law, and the New Zealand Bill of Rights Act 1990 (BORA). Analysis is presented from the New Zealand judiciary perspective, which tends to reflect a consideration of the common law presumptions and BORA. Ms Gover’s commentary of the judicial approach taken in the Takamore case (Takamore v Clarke [2013] 2 NZLR 733) is excellent and reviews the Declaration’s relevance to Māori claims in the New Zealand courts.

Chapter three considers the effect of the Declaration in domestic law and in particular focuses on the Treaty of Waitangi 1840. Matthew Palmer and Matthew Smith assess the extent of the Declaration’s reach. The tone of the chapter is realistic and leaves the reader under no illusion that there needs to be improvements in this area.

In chapter four, Claire Breen provides commentary on the rights of Māori children in Aotearoa and focuses on the effect of the Declaration and the Convention on the Rights of the Child. Overall, the author provides a useful analysis over the international legal framework in respect of indigenous children’s rights and the advancing indigenous children’s rights in Aotearoa.

Linda Te Aho’s chapter five offers an overview on the progression of claimant groups settling grievances through Treaty settlements with the Crown. Ms Te Aho, presents analysis of the rigid nature of the New Zealand framework in which claims are brought and offers considered solutions in order to better utilise the existing framework (with a few suggested modifications) to assist with future settlements that may enable Māori to garner greater self-determination.

Sarah Down and Andrew Erueti address the implications of the Declaration for Māori interests in minerals as well as the regulation of mining activities in Aotearoa in their chapter. A concise outline of some protections for Māori contained in the regulatory framework for mining is highlighted and the authors present the case for the ongoing struggle for recognition of Māori interests in natural resources. The authors present a reform model that lends greater weight on international indigenous rights afforded to Māori, coupled with innovative co-management agreements (between the Crown and Māori).

Claire Charters offers a unique perspective on the Declaration which is drawn from her experience in providing expert testimony on the Declaration to the Waitangi Tribunal in its inquiry into “Whaia te Mana Motuhake.” Ms Charters examines the case and concludes that the case findings will be such as to “compel the New Zealand Government … to engage with the Declaration”. This case will be of particular relevance and use to practitioners undertaking work in this field.

Chapter eight offers a perspective on the complexities of the United Nations Human Rights Council’s special procedures as a mechanism for monitoring and promoting implementation of the rights of the Declaration. Fleur Te Aho in this chapter restates the challenges posed by Claire Charter’s chapter seven in that indigenous advocates and Māori need to engage in the procedures available (in this case the special procedures) to give better effect to the indigenous rights as affirmed in the Declaration.

The World Conference on Indigenous Peoples convened in 2014 is discussed by Tracey Whare who served as the secretariat that served on the Indigenous Global Coordinating Group between 2012 and 2014. Her chapter provides an excellent overview on the indigenous response to the World Conference, outcomes of preparatory meetings leading up to the event, obstacles relating to implementation of the appointment of the Conference facilitators, and the challenges with drafting the World Conference Outcome document. While the author highlights some positive results and an expectation of progress following the Conference, she concludes that there is still much work to be done in this area.

Natalie Baird provides the final chapter concerning the use of the Declaration to the United Nation Human Rights Council’s Universal Periodic Review. This chapter describes the Review’s mechanism and process which is pivotal to the function of the Declaration and offers comparisons between it and Australia, Canada, and the United States.

The book provides an overview of the status and effects of the Declaration. It offers a prism of perspectives in the matrix of indigenous rights in Aotearoa New Zealand at the international and domestic level. Presented by foremost experts in this field, the book is an excellent read and provides a good source of information in this area.

Contributors: Andrew Erueti, Kirsty Gover, Matthew S R Palmer, Matthew S Smith, Claire Breen, Linda Te Aho, Sarah Down, Claire Charters, Fleur Te Aho, Tracey Whare, Natalie Baird.

International Indigenous Rights in Aotearoa New Zealand, Victoria University Press, 978-1-776560-48-6, September 2017, paperback, $40 (GST included, p&h excluded).

Dr Maria Pozza and Miaana Walden are associates with New Plymouth firm Govett Quilliam.

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