RECOGNISING THE RIGHTS OF INDIGENOUS PEOPLES.

Smith, Melanie

RECOGNISING THE RIGHTS OF INDIGENOUS PEOPLES edited by Alison Quentin-Baxter Institute of Policy Studies, Victoria University of Wellington

Recognising the Rights of Indigenous Peoples will both challenge and inspire people concerned with Maori rights and the role of Maori in decision making and policy implementation.

The book is a compilation of the papers presented at a seminar on the Draft Declaration on the Rights of Indigenous Peoples, held in Wellington in 1997. The Seminar was cosponsored by the International Commission of Jurists (New Zealand Section) and the International Law Association (New Zealand Branch). Its aim was to provide a public forum for discussing the Declaration in light of (among other factors) ongoing debate about the practical meaning of commitment to Treaty rights and obligations, limited awareness of parallel developments in other countries; and limited consultation in the community about the Declaration.

Seminar participants included the Minister in charge of Treaty of Waitangi negotiations at that time Sir Douglas Graham, Maori lawyers and leaders, prominent academics including the editor Alison Quentin-Baxter, and Lord Cooke of Thorndon. The seminar was convened by Sir Paul Reeves.

Participants in the seminar were asked to consider:

* the right of indigenous people to self-determination and, as a specific form of its exercise, the right to autonomy or self-government in matters relating to their internal and local affairs;

* the right of indigenous people to participate fully, if they so choose, at levels of decision-making and matters which may affect their rights, lives and destinies; and

* the right of indigenous people to participate fully, through procedures determined by them, in devising legislative or administrative measures that may affect them.

This was an ambitious, and not uncontroversial, mandate for a two-day seminar. However, the book demonstrates that the seminar was successful. As Alison Quentin-Baxter states in the Introduction, the book manages to explore the developing relationship between the two main ethnic groups in New Zealand and the implications for our country's future constitutional, governmental and administrative arrangements, as well as our national culture.

The authors of the papers presented in this book do not agree about the rights set out in the Draft Declaration: what they mean, whether and how they should be honoured and implemented, and their interrelationship with Treaty rights.

Recognising the Rights of Indigenous Peoples is a valuable publication because it goes beyond stumbling blocks such as the question of Maori secession and the precise wording on the declaration. As the preface by Sir Paul Reeves states, the book considers the great issues of sovereignty and self-determination; and it does so with a view to moving the debate towards practical implementation of the fundamental ideals that underlie the Draft Declaration and also the Treaty of Waitangi. For the most part, the papers contain considered and thought-provoking ideas about Maori rights and constructive ways of addressing them. The book assists in finding a way forward for Pakeha/Maori relations, and provides ideas, vision, and implementation possibilities for policy makers in this area.

The book is split into three parts: "The Conceptual Issues", "Implementing The Rights of Indigenous Peoples", and "The Way Forward". The text of the Draft Declaration is included as an appendix.

CONCEPTUAL ISSUES EXPLORED

In chapter one Sir Douglas Graham itemises the problems that the Government has with the Draft Declaration. Sir Douglas Graham was rigorously questioned, as shown by the record at the end of the chapter. These questions highlight the tension between the Maori position -- that the Draft Declaration sets out minimum rights that should not be, and cannot be watered down -- and the Government view that there are problems with the wording and rights in the Draft Declaration.

Sir Graham argues that full self-government is not possible. Instead, the Government is willing to explore ways in which Maori can exercise greater control, within existing legal and constitutional frameworks, over issues of concern to them. He contends that the draft is too loosely and ambiguously written. For example, there is no definition in the Declaration of "indigenous people". In Sir Douglas Graham's view much work is needed to clarify the effect of the words in the Draft Declaration.

Alison Quentin-Baxter's paper is the second chapter of the book, and is, in our view, one of the highlights. At the beginning of the paper, Quentin-Baxter asks some of the difficult questions that will be of concern to many Pakeha in relation to the Draft Declaration and self-determination in particular, dealing with issues of equality of law among other things. The chapter goes on to answer these questions in a well-considered and challenging manner.

Alison Quentin-Baxter explains that secession from the New Zealand Government is not necessary and not required by the Draft Declaration.

Alison Quentin-Baxter also looks at the relationship between international law, domestic law and the Treaty. She states that the Draft Declaration can work in practice without compromising the ideals and principles of indigenous peoples. The answer is not secession, but the need to obtain Maori agreement to national and local measures closely affecting them. This, she believes, would reconcile the exercise of kawanatanga by the executive and rangitiratanga by Maori. She examines the granting of special rights to Maori in the context of the New Zealand constitution. She goes on to explain why the concept of equality before the law or parliamentary sovereignty is not inconsistent with the recognition of the political rights of Maori as an indigenous people.

In envisaging ways forward, Quentin-Baxter borrows from the statute of Westminster and proposes as a possibility a Maori "request and consent procedure" whereby Parliament could continue to legislate for Maori in certain contexts at their request and with their consent. She also suggests the creation of a constitutional convention recognising that Parliament ought not to make laws that are inconsistent with the Treaty, or with international law norms pertaining to the rights of indigenous people. Quentin-Baxter suggests, in limited contexts of special concern to Maori, using a manner and form provision requiring more than the approval of a majority in Parliament for certain law making, e.g. the majority of the Maori roll in a referendum.

In chapters three and four, Te Atawhai Tairoa and Maui Solomon discuss the context for Maori. Te Atawhai Tairoa highlights the unique process by which the Draft Declaration was developed.

In Maui Solomon's view the New Zealand Government has a moral and constitutional duty to recognise and uphold the Maori right to self-determination as recognised in the Draft Declaration, stemming from the recognition that the Treaty is the foundation of the constitutional fabric of New Zealand. Maui Solomon deals head-on with the seccession issue, acknowledging that this is a fear shared by many New Zealanders. He makes the point that there is no substantive suggestion from Maori that they desire this. Maori desire greater freedom and control over political, legal, social and domestic affairs and decision-making structures.

IMPLEMENTATION OF INDIGENOUS PEOPLES' RIGHTS

The chapter by Matthew Palmer is the first in the second part of the book. This chapter focuses on two academic articles: Paul McHugh Aboriginal Identity and Relations -- Models of State Practice and Law in North American and Australasia; and Dr Ken Coates International Perspectives on the New Zealand Government's Relationship with Maori. Palmer considers the ideology that will be required to implement the Draft Declaration, analysing McHugh's relational approach, and Coates' cultural relations and cultural survival approach.

Matthew Palmer notes that it is not just governments, but society that has a responsibility to build an inter-cultural relationship between Maori and Pakeha. He also notes that both New Zealanders and the Government must recognise the on-going nature of the Maori/Pakeha relationship, and not try to focus on settling grievances for once and for all.

Matthew Palmer discusses the fact that both authors question the absolutist notions of sovereignty, a concept to which New Zealand has been particularly resistant, possibly because we lack a federal background and because of our unicameral Parliament and our history of strong government.

In chapters six and seven the authors outline situations where Maori sovereignty has been put into practice. In chapter six, Denise Henare talks about the operation of self-determination in relation to Maori health. She outlines her experience with North Health and the Maori Co-Purchasing Organisation (MAPO). Chapter seven, by Katherine Iorns Magallanes, is a case study of child welfare, and the comparative degrees of autonomy that indigenous people have in relation to child welfare in other jurisdictions, as well as providing an analysis of the international law position. Both chapters are helpful for policy makers looking for precedents for setting up structures that allow Maori to make decisions about their own affairs.

In Part Three (chapters eight and nine) Joe Williams and Lord Cooke of Thorndon make concluding comments, bringing together the various threads of the conference.

RELEVANCE TO POLICY

This book is necessarily relevant to those working in policy because the Draft Declaration which inspired the seminar sets out explicitly the aspirations of indigenous people -- and specifically Maori -- in relation to health, housing and other economic and social issues. For example, Article 23 of the Declaration states that indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to determine and develop all health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.

The Draft Declaration is directly relevant to Maori rights: articulating what those rights are, and how they should be addressed. The seminar participants were responding to these issues.

The Draft Declaration is only a draft and if it is adopted by the General Assembly of the United Nations it will be a soft law instrument only. It is a Declaration, and it will not be binding on nation states. Rather, it will serve as a set of hortatory goals.

Notwithstanding, the Draft Declaration was the product of intense and thorough discussions between indigenous peoples from around the world, including Maori who had a significant part to play in the development of the Declaration. For that reason, the substance of the text provides, and will continue to provide, a touchstone for Maori aspirations.

As seminar contributors highlighted, the process of developing the Draft Declaration was significant in itself. The Draft Declaration has an unusual history for an international legal instrument. The text was developed by indigenous peoples from around the world instead of through diplomatic negotiations between state actors. Maori had a significant role in the process, which required concerted consideration of their rights as indigenous people. There has been considerable exchange of ideas between indigenous peoples over the ten years that it has taken to draft the Declaration. Through this process, the ideas of Maori have necessarily become better developed than they would otherwise have been.

Because of the significant interfaces between the essential concepts of the Draft Declaration and the Treaty of Waitangi, the book is relevant to any policy analysis that concerns Treaty obligations. It offers much discussion of the Treaty and the fulfilment of Maori rights under it.

In his postscript, Lord Cooke of Thorndon advises that we should cling to the Treaty of Waitangi as a precious and truly distinctive thing. While the international Declaration is helpful, it is the Treaty that is essential to our community and way of life. Recognising the Rights of Indigenous Peoples emphasises that the analysis of one document informs the analysis of the other.

CONCLUSION

Ultimately, Recognising the Rights of Indigenous Peoples is important in a New Zealand policy setting because it engages with lively and rigorous debate about indigenous peoples' rights. As the Introduction emphasises, this book will challenge preconceptions. It will also provide reassurance that there is a sufficient base of shared values to enable New Zealanders to achieve positive, ongoing intercultural relationships.

Sally Bullen Melanie Smith Chen & Palmer Barristers & Solicitors Public Law Specialists(1)

(1) Sally Bullen, BA, LLB(Hons), LLM, is a Senior Associate at Chen & Palmer. Sally was Secretary of the International Law Association from mid-1997 to mid-1998. Melanie Smith, BCA, LLB(Hons), is an Associate at Chen & Palmer. Chen & Palmer is a public law firm that specialises in Parliamentary processes, regulatory issues and legal policy, including advice on the Treaty of Waitangi.