How New Zealand really stacks up on Indigenous rights

Professor Claire Charters often asks her students which country does a better job of upholding Indigenous peoples’ rights: New Zealand, Canada, or the United States.

Most hands go up for New Zealand. But by the end of the class, she says there’s been a 180-degree shift in thinking.

“The answer is, frankly, from a legal and constitutional perspective, New Zealand stacks up terribly.”

Charters (Ngāti Whakaue, Tūwharetoa, Ngā Puhi, Tainui) unpacked why at her inaugural professorial lecture, held on 10 December – the 78th anniversary of the Universal Declaration of Human Rights.

Typically, an inaugural lecture takes place soon(ish) after an academic is promoted to professor to showcase the newly minted professor’s academic journey, but as Charters, who has been a professor for around three years, told the audience, “Punctuality has never been my forte”.

Charters’ research sits within the Western legal tradition and examines state law – its potential and limitations to make way for Indigenous peoples to exercise tino rangatiratanga, or self-determination.

Her lecture took attendees on what she described as the “fastest trip around the world”, examining examples of Indigenous self-determination in Canada, the United States, Australia, Greenland, Mexico and Scandinavia. She looked at the constitutional and legal reforms in these areas that implement the United Nations Declaration on the Rights of Indigenous Peoples.

“It’s ridiculous, absurd, and stupid in the extreme, to speak on this topic with Professor James Anaya, and other scholars, in the room,” she said. “Jimmy, as my dad called him, is the most world-renowned scholar on this topic.”

Having Anaya attend her inaugural lecture was a full-circle moment for Charters. It was his book on Indigenous peoples’ rights under international law that she read “all doey-eyed” that first inspired her to work in the field of Indigenous rights.

So why does Aotearoa perform so poorly in this area?

For Charters, the starting point is constitutional structure. New Zealand has no written constitution to hold Parliament to account for human rights.

“Parliament is absolutely supreme, which means that it can pass whatever legislation it likes, irrespective of whether it breaches human rights set out in New Zealand law, international law, or te Tiriti. The courts can't prevent it from doing so.”

Another consequence of parliamentary sovereignty, she said, is that Te Tiriti o Waitangi is not enforceable unless Parliament has deemed it so by referring to it in legislation, which she described as infrequent. By contrast, courts in Canada and the United States have overturned law that breaches Indigenous peoples’ treaties and Aboriginal rights, albeit, said Charters, “only when certain legal tests are met”.

“The current government, in contrast, has just passed legislation that effectively extinguishes Māori aboriginal rights.”

She also pointed to the limits of representation within New Zealand’s system. Despite Māori seats, Māori rights are determined by the majority.
“And Māori are not in the majority.”

This, she said, sets up a situation where the majority can legislatively override Māori rights, “which it has done in some well-known examples such as Māori rights over the foreshore and seabed”.

“The current Parliament is, in my view, abusing this power almost on a daily basis.”

So what sort of reform to state governance institutions and laws would be appropriate in Aotearoa to realise Indigenous peoples’ self-determination?

One option, Charters said, might be a Māori Senate within Parliament, a stronger version of the ‘voice to Parliament’ option in Australia.

Another is Māori parliaments comprised of people chosen by the relevant Māori electorate, similar to Sámi Parliaments across Norway, Sweden and Finland. She said it’s also possible for Māori governance entities to have some jurisdiction over members, such as Māori individuals and collectives, with respect to matters such as Māori child welfare or violence against Māori women, as is the case in Alaska and Canada.

Treaty settlements with iwi could include negotiations on self-determination, for example on how iwi, hapū, or whānau might share law-making authority over traditional lands, including lands still held, lands returned, and conservation estates.

Te Tiriti o Waitangi, and human rights protections, could be entrenched in a higher, written law constitution, as treaties are in Canada and the United States. In such circumstances, parliament and legislation would be bound by te Tiriti and the courts could enforce it.

As in Mexico, Māori might receive taxpayer funding to regulate matters such as culture, social service delivery, and community infrastructure. Charters also says work should continue on the plan of action to implement the Declaration on the Rights of Indigenous Peoples, which was halted under the last Labour government and “emphatically rejected by the coalition partners currently in power”.

“My hope is not only to contribute to thinking on this subject but to contribute to real-life and practical positive change by identifying laws and institutions that can realise Indigenous peoples’ right to self-determination,” she said.

“In this way, as I’m sure is evident to my colleagues, I guess I am illustrating too how the advocate and scholar in me cannot be disentangled.”

Charters says self-determination is key to fundamental and structural decolonisation, to redressing the consequences of colonisation, to peaceful co-existence, to legitimate governance, and better socio-economic and cultural outcomes for Indigenous peoples.

“My conclusion on all of this is that history, law, legitimacy, human rights, the Treaty, the need to address significant disparity facing Indigenous peoples, equality, justice, decolonisation, democracy, and the mere fact that New Zealand’s Westminster constitution sucks for Māori, and always has, means we have to take constitutional transformation seriously.”