Whether it knows it or not --whether by Coalition design or by bureaucratic subterfuge -- it appears that legal implementation for co-governance has been strengthened under this Government's term rather than diminished.
A recent post pointed out that the UN Declaration on Indigenous Rights, the underpinning that creeping implementation, was a poison pill quietly smuggled in with the Indian Free Trade Agreement (FTA ). It was Gary Judd KC who spotted the clause in the signed Agreement calling on the parties to "affirm" NZ's commitment to this race-base Declaration. As Judd notes this morning, this is an escalation on previous Free Trade Agreements with the UK, which called for the parties to "note" the commitment, and with the EU to "further note."
This is not simply harmless playing around with words. In legal terms, as Judd himself notes, it is "a significant escalation."
And it's not the only escalation towards co-governance.
Remember that what underpinned the moves made by Ardern's Labour Government towards co-governance -- towards sharing government power with tribal leaders -- was that UN Declaration. That gave legal strength towards their quiet moves towards what Elizabeth Rata calls "re-tribalisation."
In 2007, the position of Helen Clark's Government was in opposition. Clark was many things, but she wasn't stupid.
John Key was. In 2010, his Government sent Pita Sharples to the UN to "support" it. That "support," when ratified here, underpinned the Ardern Government's support for He Puapua and for every flavour of co-governance emerging since.
And then in 2023, Hipkins's Government moved from endorsing the UN Declaration to a commitment “to upholding the rights affirmed in the Declaration.” These weren't just a small change in words. As a result, the Hipkins's Government then sought advice “to support the drafting of a plan to achieve the ends of the UN Declaration in Aotearoa New Zealand.” Those ends, of course, called for "self-determination" for so-called indigenous people. As Judd explains it, this is when "Non-binding aspirations morphed into affirmed [legal] rights." Once the NZ Government regarded self-determination as a cornerstone of the UN Declaration it then meant tribal participation in government decision making.
As the New Zealanders who claim indigenous status are Māori and governmental decisions affect all New Zealanders including Māori, this means the New Zealand position had become one where Māori should have the right to participate in all or most decision making. That is co-governance between a democratically elected government for all New Zealanders and Māori. Māori protocols ensure they are represented by an essentially self-selected elite.
Words, in politics, are so much fluff. Words, in law, do matter.
[B]y the affirmations of the declaration and New Zealand’s position, has confirmed that the UN Declaration has binding status (for that’s the meaning of affirm in legal parlance) with a double whammy by confirming New Zealand’s position when that position at the UN and in international law is the July 2023 position.
The Minister and MFAT officials may try to justify themselves by claiming that New Zealand saying in an international agreement that it is bound by the UN Declaration and committed to upholding the rights contained in it is not the same as acknowledging that it has binding effect in New Zealand but that is sophistry which will not wash.
For reasons given in [my earlier post], there is little doubt that the courts will take the affirmations for what they plainly are: New Zealand’s acceptance that the UN Declaration is binding such that its principles may be utilised in the interpretation of legislation and as influencing the common law.
As Rata says in her own post on this, "today's politicians [should] look closely at all re-tribalisation language." Especially if it is being smuggled in through political stealth.
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