IN THE WAITANGI TRIBUNAL WAI 262 IN THE MATTER OF AND IN THE MATTER OF AND IN THE MATTER OF a claim to the

Waitangi Tribunal by Haana Murray of Ngati Kuri, Hema Nui a Tawhaki Witana of Te Rarawa, John Hippolite (now deceased) of Ngati Koata, Tama Poata of Whanau a Rua and Ngati Porou (now deceased), Kataraina Rimene of Ngati Kahungunu and Te Witi McMath (now deceased) of Ngati Wai. a claim to indigenous flora and fauna me o ratou taonga katoa. the Treaty of Waitangi Act 1975

BRIEF OF EVIDENCE OF CATHERINE DAVIS 11 August 2006 PERSONAL BACKGROUND Education and Employment 1. My name is Catherine Davis. I am of Te Rarawa descent. I live in Kaitaia and I am employed by Te Runanga o Te Rarawa as their Te Rarawa Treaty Claims Manager. 2. My main responsibilities are to coordinate the negotiations of the Te Rarawa Historical Land Claims Settlement with the Crown, and to manage Rūnanga involvement in other Treaty claims processes including any Waitangi Tribunal claims and the Foreshore and Seabed Act settlement negotiations with the Crown. I am authorised by Te Runanga o Te Rarawa to make this statement on behalf of the Te Rarawa Wai 262 claimants. 3. I have a Bachelor of Law and Social Sciences (Te Whare Wānanga o Waikato/ Hamiliton University, 1993) and a Master of Laws (Te Whare Wānanga o Te Upoko o Te Ika/ Victoria University, 1998). 4. I worked as a Policy Analyst at Te Puni Kokiri Head Office, Wellington, from 1994 to 1998. As part of my duties at that time I attended and reported on the WAI 262 hearing held at Rotorua. I was then employed as a solicitor in the Māori Unit of the Legal Firm
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Rudd Watts & Stone in 1999 before moving home to Kaitaia in 2000 to begin employment with Te Rūnanga o Te Rarawa (the Rūnanga). Involvement in International Issues Committee on the Elimination of Racial Discrimination (CERD Committee) 5. In July 2004 Te Rūnanga o Ngai Tahu and the Treaty Tribes Coalition petitioned the CERD Committee, under its Early-Warning and Urgent Action Procedure, to review compliance of the New Zealand Foreshore and Seabed Act 2004 (the F & S Act) with the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). In August 2004 the Rūnanga provided written support for this petition. I was the staff member who coordinated the Rūnanga’s involvement in that matter. 6. In March 2005 the CERD Committee reported its findings on the petition regarding the F & S Act, and I have since held the watching brief over this matter. The CERD Committee Secretariat has advised that the New Zealand Government (the Government) is expected to provide its Period Report to the CERD Committee in Spring 2007 (Geneva time) meaning that NGO reports would be needed by December 2006. United Nations Fellowship 7. In 2005 I was one of five applicants worldwide who successfully applied for the Indigenous Fellowship being offered by the United Nations (UN) Office of the High Commissioner for Human Rights in Geneva. Selection for the Indigenous Fellowship is regionally based, and I was the Applicant chosen from the Pacific region. The Fellowship began in May 2005 and ran for five months until September. During this time the Fellows received training on the UN instruments and mechanisms that promote and protect indigenous human rights. United Nations Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People (Special Rapporteur)

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8.

In November 2005 the Special Rapporteur conducted his Mission to New Zealand.1 I assisted the Special Rapporteur with preparing his Mission brief, with liaising with Māori groups in Aotearoa prior to his visit and was a member of the ad hoc volunteer Working Group which facilitated Māori participation in the Mission. Our tasks included developing an itinerary with the Special Rapporteur’s office and negotiating that itinerary with the Government.

UN Permanent Forum on Indigenous Issues (PFII)

9. In 2006, with the support of the Rūnanga, I participated in the Fifth Session of the PFII
held at the UN Headquarters in New York. The mandate of the PFII is to provide information, advice and recommendations to the UN Economic and Social Council on indigenous issues in the six areas of economic and social development, culture, environment, education, health and human rights. The PFII also raises awareness and promotes the integration and coordination of activities related to indigenous issues within the UN system.

10. My participation at the PFII included drafting and delivering interventions in the Plenary
meetings during the Session, and involvement in the Pacific and Youth Caucus meetings and activities. INTRODUCTORY REMARKS 11. Born in Auckland, my father moved us back to our whānau land in Ahipara in the early 1980’s. As a result I have always felt closely connected to my turangawaewae. I am not a strong speaker of te reo which, rightly or wrongly, I put down in part to the fact that I had an urban childhood, but mostly I attribute to colonization: As I got older I began to ask to myself why my grandmother refused to speak te reo around my father and our whānau even though she was a fluent speaker. In my adult years I came to feel that I had some opportunity taken from me to learn my mother tongue, and have sought out opportunities to learn te reo wherever I can. I do not want my son to feel the same deprivation in that respect as I do.

1

The purpose of his visit was “to gain a better understanding of the situation of indigenous people in New Zealand through discussions with the relevant parties on issues such as the treaty settlements process, the implications of the Foreshore and Seabed Act, public policies designed to reduce social inequalities between indigenous people and others, the provision of basic social services such as education, housing and health care to indigenous people, and the cultural revitalization of Maori.” (Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rodolfo Stavenhagen, to the Commission on Human Rights Sixty-Second Session, 13 March 2006 [E/CN.4/2006/78/Add.3], para 1, p4). 5/24/2012 Page 4 of 28

12. I have always been attracted towards matters to do with the environment. For example, I have noticed over the years changes locally and nationally which are worrying. As children, we used to swim in the river below Korou Kore marae in Ahipara. However, in recent years the nutrient levels have risen to the point that many believe it is unsafe to swim there. I also share the concern of many locals that the Landfill located nearby is contributing to the degrading water quality. 13. Human rights is another area that I have long been interested in. This is not surprising given the strong link between people and the environment, and being Māori with rights under the Treaty of Waitangi. My university and employment experience heightened my awareness of just how political it is to be Māori in Aotearoa, but in a well-rounded way (having worked for government, in the private sector and for iwi I have the good fortune to have seen ‘Māori rights’ from all sides). My time at the UN in particular reinforced for me that Māori experiences of discrimination, racism, and abuse of other human rights is not just unique for Māori, but for many if not all colonized indigenous peoples worldwide. It has also been interesting to observe how human rights abuses and environmental degradation often go hand in hand. This reaffirms for me that indigenous peoples are in many ways the ‘barometer’ of local environmental health, and therefore the environment will only ever be fully restored if indigenous human rights are fully protected. I therefore look forward to a time when the whānau, hapū and iwi of Te Rarawa will have our tino rangatiratanga over our taiao, takutaimoana, flora and fauna restored not just on paper, but in practice. And what is good for Te Rarawa is good for all. 14. The WAI 262 claim, while complex and far-reaching, really boils down to one fundamental right. No-one has expressed this better than Ngati Kuri claimant Saana Murray: it’s about Māori control over things Māori. Māori know this concept as tino rangatiratanga as guaranteed under Article two of te Tiriti. Others might recognise the concept as akin to the right of all peoples to self-determination which is well-founded at international law. 15. Although I did not give evidence in the first series of hearings for Te Rarawa, in my capacity as claims facilitator, I have acquainted myself with the international issues that have been raised by the wai 262 claimants and particularly by the Te Tai Tokerau claimants including the evidence provided by the overseas experts such as Dr Darrell Posey. The purpose of my brief is to provide updating evidence for Te Rarawa (which is supported by Ngati Kuri and Ngati Wai) on international aspects of the Wai 262 claim with which I am familiar.
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16. It is often said that not being able to enforce or exercise one’s rights is tantamount in reality to not having those rights at all. In this affidavit I will: a. Highlight, using the DDRIP as a key focus, some of the international instruments and mechanisms which are significant to Māori in regards to advocating and protecting our human and Treaty rights; b. Give examples of how the Crown has breached both the principles and the specific Articles of te Tiriti by prejudicing the ability of Māori to effectively utilize those instruments and mechanisms to advocate for better protection of such rights. This includes rights over our taonga works, genetic and biological resources, matauranga and language, and the environment; and c. Offer some suggestions to address this prejudice and help towards establishing a Crown-Māori Treaty relationship focussed at the international level. UN DRAFT DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES DDRIP Introduction – Importance as Tool for Māori re WAI 262 17. My participation at the PFII this year provided me with much insight into the issues concerning the DDRIP. 18. Despite the significant body of international law, instruments and mechanisms protecting human rights, indigenous peoples around the world still face gross human rights violations resulting from historic injustice, systematic discrimination and marginalization. The situation of Māori is no different as examples below help illustrate.2 19. The DDRIP is the defining global response to the urgent need for one instrument that consolidates and affirms all human rights of indigenous peoples including such rights to self-determination, to freely determine their political status and economic, social and cultural development, to lands, territories and resources and to freedom from discrimination. All these rights relate to the ability of Māori to control things Māori – our taonga, land, natural resources, culture and identity, well-being, and political power. All these things are at the heart of the WAI 262 claim. 20. The Crown’s policies and behaviour over the years with regard to protecting Māori Treaty rights leaves a lot to be desired.
2

On the one hand the Crown has spoken of its

commitment to strengthening its relationship with Māori “as a partner in the Treaty of
Refer also to the recommendations of The UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People (E/CN.4/2006/78/Add.3, 13 March 2006). 5/24/2012 Page 6 of 28

Waitangi”, “strengthening the ability of Māori to have greater control over their own development” and being internationally committed to “ensuring that indigenous issues are addressed openly and constructively within the UN system”.3 On the other, the Crown has continued down a path of Treaty retraction which under current trends shows little hope of letting up (examples below). At best the Crown could be described as hypocritical, unclear and contradictory (interesting when the Crown often uses ‘the need for certainty’ to justify its policies4). At worst the Crown has implemented a shameless policy of winding back recognition and protection of Māori Treaty rights. This in itself is a breach of good faith. I will give examples to support this statement later in my brief. 21. Two points are worthy of note. First, the DDRIP does not actually create anything new in terms of indigenous human rights, as by definition human rights are pre-existing and inalienable. The DDRIP is simply an instrument of elaboration and consolidation. Secondly, Declarations are strictly speaking not legally binding upon States. However, “the [DDRIP] could impact on the content of customary international law, which is binding on New Zealand.”5 Once adopted, therefore, a DRIP will establish an important normative international standard for treatment of indigenous peoples with which to engage and lobby the Crown for the protection of Māori human and Treaty rights, and will set a framework and foundation for future development of a Convention which will be legally binding. As such, a DRIP that compliments and reinforces Māori Treaty rights would provide a valuable tool to advocate those rights both domestically and internationally. Examples of Government Treaty “Retraction” 22. There seems to have been an increasingly enthusiastic and aggressively dismissive attitude by the Crown of late regarding the Treaty of Waitangi policies and behaviour towards Māori. Many commentators trace this attitude back to the Government’s kneejerk reaction to the now infamous National Party’s Orewa speech.6 Only a selection of

3

Statement by New Zealand Representative Jillian Dempster, UN General Assembly 58th Session UN Commission on Human Rights, 28 April 2002, http://www.mfat.govt.nz/speech/pastspeeches/speeches2002/26apri02b.html. 4 For example, in regards to the Foreshore and Seabed Act 2004. 5 Charters, C “International Developments Concerning Indigenous Peoples and Their Relation to National Laws, Policies and Action: Māori in Aotearoa/ New Zealand”, paper for the UN Expert Seminar on Implementation of National Legislation and Jurisprudence Concerning Indigenous Peoples’ Rights: Experiences from the Americas, 12-14 October 2005, p12. Provisions of a declaration can be viewed as customary international law if States repeatedly act in accordance with it, and if it can be shown that they believe it is their legal obligation to do so. Certain provisions of the DDRIP may already be considered customary international law. 6 Delivered to the Orewa Rotary Club, 27 January 2004. 5/24/2012 Page 7 of 28

examples are highlighted below. I will return to these points in the next section of this evidence regarding the Crown’s position on the DDRIP. The Need for “One Law for All” 23. One underlying message of National’s Orewa speech was to promote one law for all New Zealanders, brought on by the view that Māori were receiving special privileges. This is a policy that the Labour Government appears to have picked up on.7 However, there are so many reasons why this notion is fundamentally flawed. Applying one law for all in a bicultural / multicultural society where the law itself is predominantly of one culture leads to unequal treatment and outcomes.8 The Government’s ‘one law for all’ policies have in the past led to innumerable violations of Māori rights and interests. This has been described as systematic discrimination and has led to the loss of Māori control over things Māori. Conversely, significant control over Māori taonga was transferred to the Crown, the iwi kē, corporations and others. 24. Recent evidence from both within Government9 and internationally10 shows that racial discrimination contributes to inequalities in health outcomes between Māori and Europeans. This demonstrates a clear link between ethnicity and Māori wellbeing, one that the Crown chooses to ignore11 but which UN experts themselves consider can only be adequately addressed through special policy measures targeting Māori.12 25. A fair model of recognising and protecting Māori rights in the future that acknowledges and addresses the cumulative effects of past Crown policy and practice of discrimination and neglect needs to be developed and implemented. Te Rarawa believes such a model is necessary and achievable.
7

The Government has stated that “no government can accept the notion of creating different classes of citizenship.” (Statement by Australia, New Zealand and the United States of America on the DDRIP, at the UN PFII, New York, 17 May 2006). 8 For further elaboration, see the Joint Methodist-Presbyterian Public Questions Committee “Towards a Māori Criminal Justice System” as referred to by Te Ururoa Flavel, MP for Waiariki, Speech to the House, 28 June 2006. 9 For example, see Ministry of Social Development “New Zealand Living Standards 2004 Report” (11 July 2006). 10 See Bhopal R, “Racism, socioeconomic deprivation, and health in New Zealand”, The Lancet - Vol. 367, Issue 9527, 17 June 2006, p1958; Harris R, Tobias M, Jeffreys M, Waldegrave K, Karlsen S, Nazroo J “Effects of self-reported racial discrimination and deprivation on Māori health and inequalities in New Zealand: crosssectional study”, The Lancet 2006; p367. 11 There was no mention of “Māori” at all in the Ministry of Social Development’s media release about its Living Standards 2004 Report. 12 The UN Special Rapporteur stated that “There appears to be a need for the continuation of specific measures based on ethnicity in order to strengthen the social, economic and cultural rights of Maori as is consistent with the [CERD].” (E/CN.4/2006/78/Add.3, 13 March 2006, para 80, p19). The Report of the International Expert Group Meeting on the Millenium Development Goals, Indigenous Participation and Good Governance also states that “the respect for indigenous peoples’ specific rights is an essential element of good governance, and…for achieving the [MDGs]” E/C.19/2006/7, p4. The MDGs include goals relating to peoples’ health and wellbeing. 5/24/2012 Page 8 of 28

26. Furthermore, insisting on one law for all ignores two realities. First, Māori do have special rights that iwi kē do not. They are rights established because of an agreement entered into between two parties: Māori and the Crown, namely Te Tiriti o Waitangi. Holding up its end of the ‘Treaty bargain’ and actively protecting Māori Treaty rights is the whole basis for allowing the Crown to govern in Aotearoa and allowing settlement of this country to happen. These constitutionally guaranteed Māori rights cannot be ignored without also ignoring the ‘special’ reciprocal rights that the Crown acquired to govern in New Zealand. Te Rarawa consider te Tiriti to be an internationally legally binding document,13 and believes that the Crown’s failure to protect Māori Treaty rights is a breach of international law. The Crown refuses to recognise te Tiriti as having any international status.14 27. Second, ‘one law for all’ assumes any other model is inappropriate or impossible. But “the constitutional machinery for the recognition and application of Māori customary law, together with developed ‘rules of recognition’ are already in place in the law of Aotearoa”15- the common law already accommodates minority and Māori interests and Māori customary law. Arguably, “the co-existence of different systems of rules is not only possible but inevitable”.16 It would be a show of good faith on the Crown’s part to recognise or at least entertain this possibility rather than continually denying it, particularly in the context of protecting our tino rangatiratanga over our taonga. Removal of Treaty Principles 28. A current example of Crown retraction on Māori Treaty rights is the Government’s support for New Zealand First’s Private Member’s Bill to eradicate all Treaty principle references from legislation. One would think that, by this very action, the Government is at odds with “active protection” of Māori Treaty rights. The Government says it will honour its undertaking to support the Bill. But how does this help the Government, “as a matter of conscience”,17 to honour its Treaty obligations to Māori when te Tiriti is only
13

For example, see Miguel Alfonso Martinez, UN Special Rapporteur “Study on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Populations” (E/CN.4/Sub.2/1999/20, 22 June 1999). 14 C Charters comments that “the Treaty has certainly been treated as a domestic rather than as an international issue by government. For example, the [government’s] negotiating brief on the draft Declaration on the Rights of Indigenous Peoples states that “the Treaty of Waitangi is not recognised as an international Treaty in law”.”, note 5 above, p4. 15 Frame, A and Meredith, P “One Plus One Equals Three”, speech given to a one-day symposium at Old Government House, the University of Auckland, Saturday, 22 July 2006, p5. 16 Note 15 above, p12. 17 Speech to the House by Hon Mita Ririnui, Associate Minister in Charge of Treaty of Waitangi Negotiations, 8 June 2005, http://www.labour.org.nz/Our_mps_top/mita_ririnui/speeches_and_releases/050608PrinciplesTOWDeletionBil l/index.html. 5/24/2012 Page 9 of 28

enforceable if explicitly incorporated into legislation, especially when the Government itself admits that the removal of all references to the Treaty principles: a. Is unnecessary, as there is sufficient jurisprudence and elaboration from within Government and under common law as to interpretation and application of the principles.18 b. May give rise to “significant potential risk and negative impact on the relationship between many Māori and the Crown” and “would undermine the good-faith relationship between the Crown and those it settled with”,19 and c. Is “deliberately ignorant and morally repugnant.”20

29. Government has saved some face by announcing that it will not support the Bill past the First Reading because of the damage it would do to the Crown-Māori relationship.21 However, this is too little too late: in supporting such a Bill even at this preliminary stage of progression through the House, the lack of good faith damage to the relationship is already done. It sends mixed messages to the public about the importance of the principles, and it leads to speculation about what policies the Government might support or implement in the future to stay in power. Foreshore and Seabed Act 30. Another example, still fresh in the minds of Te Rarawa [and every other Iwi], is the F & S Act 2004. The Tribunal has already reported critically on the Crown’s foreshore and seabed policy,22 In addition, the CERD Committee found that the Foreshore and Seabed Bill contained “discriminatory aspects against Māori .. in its extinguishment of the possibility of establishing Māori customary title over the foreshore and seabed and its failure to provide a guaranteed right of redress”.23 The Government retaliated with criticism that the CERD decision could simply be ignored, as the CERD was on the fringes of the UN system. Ironically however, the CERD Committee’s finding was consistent with the Attorney General’s earlier advice to Government that the Bill “contained a prima facie breach of the right to freedom from discrimination” as the Bill

18 19

Note 17 above. Hon Mark Burton, Questions in the House on Treaty of Waitangi – Legislation, 25 July 2006. 20 Note 17 above. 21 New Zealand Herald, “Treaty bill passes first reading but won't go any further” (26 July 2006). 22 Waitangi Tribunal, “Report on the Crown’s Foreshore and Seabed Policy – WAI 1071”, 8 March 2004. 23 Decision 1(66): New Zealand Foreshore and Seabed Act 2004 (11 March 2005) CERD/C/66/NZL/Dec.1, para 7. 5/24/2012 Page 10 of 28

treated native title interests differently to freehold interests in land and failed to guarantee redress to native title holders for the deprivation of a property right.24 Review of New Zealand’s Constitutional Arrangements 31. In its 2005 report to Parliament, the Committee of Inquiry to review New Zealand’s constitutional arrangements stated that “New Zealand’s constitution is not in crisis”25 – an assessment determined by the Inquiry Committee despite numerous submissions from Māori urgently calling for change, and the entrenchment of te Tiriti to protect Māori rights. The Special Rapporteur made five recommendations in his New Zealand Country Report to the UN concerning constitutional issues, including one supporting the urgent need to entrench the Treaty constitutionally.26 However, the Government disparaged the Special Rapporteur’s Report describing it as “disappointing”, “unbalanced” and “narrow.”27 Concerns continue to be publicly expressed about the need to reform the constitution so as to give proper recognition to the Treaty, and so that protection of Māori Treaty and other minority rights will not depend on “the pleasure of the majority”.28 It is obvious that the Crown holds little regard for Māori or any views other than its own regarding the urgent need for constitutional reform in New Zealand. Draft School Curriculum 32. In August this year the Government removed te Tiriti from its draft Curriculum and “all parts of the national strategy for education”.29 More specifically, the draft does not refer to te Tiriti / the Treaty in key areas such as:30

“principles (the Treaty was previously31 one of nine key principles of the New Zealand Curriculum Framework)

24

C Charters, note 5 above, p19. Kelsey also points to the hypocrisy of the Government “claiming the te Te Tiriti o Waitangi confers no binding rights on Māori, while claiming that private property rights are sacrosanct and negotiating international treaties that require the government to protect the rights of foreign investors and corporations over those same resources in the form of beachfront sections, ports, mussel farms or marinas: “Speech to the ARENA Forum on the Seabed and Foreshore”, Auckland 3 February 2004. 25 Report, p7, available at http://www.constitutional.parliament.govt.nz/ . 26 E/CN.4/2006/78/Add.3, 13 March 2006, para 85, p20. 27 Hon Dr Michael Cullen, Deputy Prime Minister, “Response to UN Special Rapporteur report”, 4 April 2006 Media Statement. To demonstrate legitimacy of its criticisms of the report, the Government relied on its “exemplary” record before UN human rights treaty bodies. However, in doing so it failed to mention that the CERD Committee had criticised the Government for passing the Foreshore and Seabed Act which contained discriminatory aspects against Māori. 28 Watkin, T, “Get it in Writing” (the Listerner, 5 August 2006, p30). 29 Te Ururoa Flavell, “Māori Party Reveals that the Treaty of Waitangi is Already Deleted From Education – Is this cultural Genocide by Omission?” (press release, 1 August 2006). 30 .Te Te Ururoa Flavell, n 29 above. 31 The principles of the New Zealand Curriculum Framework has since 1993 included that “the New Zealand curriculum recognises the significance of the Treaty of Waitangi”: Dr Pita Sharples, “Questions to Ministers – School Curriculum – Government Policy” (Questions and Answers – Tuesday, 1 August 2006). 5/24/2012 Page 11 of 28

in the Social Sciences curriculum, (where learning about New Zealand society used to include “an understanding of the Treaty of Waitangi”)

in the Language and Languages section (where te reo was previously referred to as a taonga under the terms of the Treaty of Waitangi).

33. Furthermore, the “unique value of Māori arts” and “non-racism” was also deleted, while at the same time establishing English as a new learning area.32 This prompted speculation that the Labour Party was trading off its absence of support (past the First reading) for New Zealand First’s Principles of the Treaty of Waitangi Deletion Bill.33 It is difficult to understand how the Crown could consider that such moves would enhance our children’s awareness and understanding of te Tiriti, our history and Māori culture. Moreover, the draft ignores specific UN recommendations to the Crown, for example that: a. “The Māori cultural revival involving language, customs, knowledge systems, philosophy, values and arts should continue to be recognised and respected as part of the bicultural heritage of all New Zealanders through the appropriate cultural and educational channels” ;34 and b. “Recalling the State party’s obligations under article 2(1)(d) and article 4 of the [CERD], it hopes that all actors in New Zealand will refrain from exploiting racial tensions for their own political advantage.”35 34. However one describes the Crown’s attitude, it is definitely demonstrating bad faith in honouring te Tiriti which has damaged not only its relationship with Māori but also New Zealand’s human rights reputation among the global community. This attitude has been pervasive throughout the progression of the DDRIP, and has ultimately led to a lack of Crown recognition and implementation of Māori Treaty rights. DDRIP Backdrop 1985-2005 35. In 1985 the UN Working Group on Indigenous Populations (WGIP), a subsidiary organ of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities (Sub-Commission),36 began working on the DDRIP.
32

Indigenous

Te Ururoa Flavell, “Third Time Unlucky says Te Ururoa Flavell, Education Spoksperson for Māori Party” (press release, 3 August 2006). 33 During Question and Answer time in Parliament on 1 August 2006 Te Ururoa Flavell asked Parekura Horomia (Associate Minister of Education) “Does the publication of the new draft curriculum pre-empt discussions at the select committee about [the Bill], given that any reference to Te Tiriti o Waitangi has already been removed from the draft?”. 34 Special Rapporteur report, n 1 above, para 100, p 21. 35 CERD decision 1(66): n 23 above, para 3. 36 Now the Sub-Commission on Promotion and Protection of Human Rights. 5/24/2012 Page 12 of 28

representatives, government delegations and experts participated over the next nine years in formulating and negotiating the Draft. It was then adopted by the Sub-Commission in 1994 as “the minimum standard” for indigenous rights. DDRIP Working Group 36. In 1995 the UN Commission on Human Rights (Commission), to which the SubCommission was directly accountable, established an Open-ended Intersessional Working Group (Working Group). Its purpose was to elaborate a DDRIP, using the SubCommission’s ‘minimum standard’ draft adopted the previous year as the basis for discussions. Unlike the WGIP, only member governments of the Commission were entitled to vote. Governments that were not members the Commission, NGOs with consultative status and indigenous organizations with special accreditation were able to take part in the proceedings with observer status only. There was also a procedure for participation by indigenous organizations without consultative status. However, intense negotiations between states and indigenous peoples continued. 37. The Commission initially aimed to adopt the DDRIP and forward it to the UN General Assembly for adoption by the end of the International Decade of the World’s Indigenous People (1995-2004). Due to problems achieving consensus among States and indigenous peoples the DDRIP was never adopted by that time (but see comment on consensus, below). However, thanks to developments such as the UN General Assembly proclamation37 of a Second International Decade of the World’s Indigenous People (20052014), and the September 2005 UN World Summit,38 the importance of the adoption of a DRIP was reinforced as constituting an ongoing major UN objective. The task to adopt a DRIP early in the Second Decade therefore became a high priority for the Commission. 38. The point to be made here is that the global community, both indigenous peoples’ representatives and UN member nation states, had agreed that adopting a DRIP was imperative. ‘By consensus’ was always the ideal and preferred form of adoption. However, the lack of consensus was not fatal to the DRIP. Chair’s “Compromise” Text & PFII 200639 - Government’s Substantive Objections
37 38

December 2004. Held in September to, among other things, enable states to reach major decisions on ending poverty and promoting human rights. The Summit reaffirmed its “commitment to continue making progress in the advancement of the human rights of the world’s indigenous peoples at the local, national, regional and international levels, including through consultation and collaboration with them, and to present for adoption a final draft United Nations declaration on the rights of indigenous peoples as soon as possible”: Resolution on World Summit Outcomes, Resolution 127, p28, adopted by the General Assembly, Sixtieth Session, 24 October 2005 (A/RES/60/1 refers). 5/24/2012 Page 13 of 28

39. The Eleventh and final Session of the Working Group in December/February 2006 concluded with the majority of the DDRIP being agreed on for adoption. Indigenous delegations to the final Working Group Session worked hard to find areas of agreement and acceptable compromise on the DDRIP provisions. However, states including the New Zealand Government “did not exercise the same self discipline among themselves”40 and could not agree. This left the Working Group Chair with the responsibility of resolving the situation. His solution was to formulate a ‘compromise text’ which he presented to the Commission in March 2006.41 40. However, the Government continued to take the opportunity to express specific concerns, most notably in its joint statement with Australia and the USA on 17 May 2006 at the PFII.42 The following highlights a number of aspects regarding the Government’s policy position on the Chair’s Text, positions consistent with its attitudes as previously discussed (above). In taking the stance that it did the Government has been criticized for actively seeking to unreasonably limit Māori Treaty rights supported by the Text. Lack of Consensus 41. The Government made much of the fact that there was still no consensus on the remaining DDRIP provisions. It took the position, repeated in a joint statement with the states of Australia and the United States at the PFII this year that a lack of consensus meant the DDRIP was “fundamentally flawed”.43 42. This came to be seen by many – both other states and indigenous representatives alike - as unreasonable, and would easily meet the definition in Māori eyes of a lack of good faith. Why? For one, there only seemed to be a handful of states who were actually opposing the provisions concerned. It does not seem right that a very few states could hold the rest to ransom. It was widely known that those leading the charge to oppose the DDRIP (New Zealand, Australia and the USA) all had significant indigenous populations and but did not have a particularly great record for protecting their human rights. Many felt that after 21 years of negotiating, the time had arrived for pragmatism: it was not realistic to expect

39

A primary contributing source of information for this part of my affidavit, unless otherwise indicated, is the Indigenous peoples’ Centre for Documentation Research and Information (DoCiP) “Update” newsletter, Nov. 05 – Feb. 06. A copy can be found at www.docip.org. 40 DoCiP., note 31 above, p1. 41 Report of the working group established in accordance with Commission on Human Rights resolution 1995/32 on its eleventh session, by Chairperson-Rapporteur: Luis-Enrique Chávez (Peru), 3 March 1995 (E/CN.4/2006/79 refers). 42 For full statement see Attachment One. 43 17 May 2006. See note 33 above. 5/24/2012 Page 14 of 28

that complete consensus could be achieved on the DDRIP, 44 particularly if there were certain states which refused to shift their views.45 These states were seen to be tactically obstructive to delay progress. 43. Furthermore, the insistence on complete consensus ignored past UN experience. In 1948 the Universal Declaration on Human Rights came before the UN General Assembly. There were strongly held differences by some member states concerning certain provisions in the declaration. However, the General Assembly was asked to approve the declaration by a majority, which is exactly what happened. 48 states voted for, eight abstained and two were absent. The declaration was adopted without opposition. Self Determination - especially Articles 3, 31, 33 and 45 44. The UN Charter gives blanket recognition of the right to self determination to all peoples. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) also contain a common Article 1 which states: 1.1 “All peoples have the right of self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”46; and 1.3 “The States Parties […] shall promote the realization of the right of selfdetermination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.” 45. Article 3 of the DDRIP also provided for self determination of indigenous peoples. The Government, however, argued before the Working Group and at the PFII that secession and independence cannot be intended outcomes of Article 3 as self determination including possible secession would put at risk “territorial integrity” and political unity of the state. It is interesting to note that while the Government identified this risk, other

44

For example, prior to the vote on the adoption of the DDRIP at the Human Rights Council’s First Session on 29 June 2006, Peru (the nation state of the DDRIP Working Group Chair) said of the DDRIP “consensus in this case is unattainable”. 45 It is noted that even the Special Rapporteur recommended in his Report on his Mission to New Zealand that the Government should continue to support efforts to achieve a DRIP “by consensus”. However, one would argue that holding a position that unreasonably limits indigenous peoples’ rights and which is therefore going to attract significant opposition from other states and indigenous peoples is not acting in the spirit of “consensus”. The Government could opt to abstain from voting and/ or engage with Māori in order to be open to shifting their position, but the Government did neither. 46 This may include, under certain circumstances, the right to secession and full independence. 5/24/2012 Page 15 of 28

States supportive of the DDRIP (including fellow Commonwealth member the United Kingdom47) did not. 46. The Government also criticized that an indigenous right to self determination would have negative impacts on third party rights (e.g. private landowners – including individual Māori). 47. However, it is not the usual legal practice to interpret a single Article in isolation from other provisions in the document. And in this case, Article 3 is qualified by Article 45 which requires the Declaration to be interpreted "in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith", and consistently with the UN Charter.48 48. Furthermore, the Government’s attempt to limit indigenous self determination is inconsistent with the sanctioning by the UN General Assembly during its Sixtieth Session in October 2005 of the expression Indigenous “peoples”. This is significant, as the term “peoples” (as opposed to “people”) holds a particular meaning at international law. The UN recognition of indigenous “peoples” further reinforces the availability to indigenous peoples of the protection under common Article 1 of the ICCPR and the ICESCR regarding self determination.49 Failure to include indigenous peoples under the protection of Article 1 of those two International Conventions, as the Government has attempted to do, discriminates against indigenous peoples, and therefore breaches the CERD. 49. Similarly in regards to Articles 31 (“Autonomy and Self-Government”) and 45 (“Not contrary to the Charter50”), the Government (and Australia) insisted on the use of such language that ensured that the DDRIP would not affect third party rights, public interest and territorial integrity. In this respect, the Government favoured the use of language such as “in accordance with public interest as determined by the rule of law.” However, this means one rule of law for all, and Māori and other indigenous peoples know from experience that “the public” (or national) interest is often used to justify the dilution or expropriation of indigenous rights. The F & S Act 2004 is a recent example of such expropriation.
47

At the UN Human Rights Council’s First Sesssion on 29 June in Geneva, the UK announced its understanding that the right to self determination under the DDRIP was to be exercised within the territory of a State, so was not designed to impact in any way on the territorial integrity of States. See http://www.unog.ch/unog/website/news_media.nsf/ (httpNewsByYear_en)/BE82C77003776B9EC125719C005D5994?OpenDocument . 48 The relationship between the articles was specifically noted at an International Workshop on the draft hosted by the Government of Mexico, September 2005. 49 See para 14 above regarding the UN World Summit recommendations. 50 Charter of the UN. 5/24/2012 Page 16 of 28

50. There also already exist internationally varying degrees of indigenous self determination and recognized political structures through which indigenous peoples engage with states. 51 The Government could with sufficient political will use these to meaningfully engage with Māori on developing a model for Māori self determination along the lines that have been argued for by the Wai 262 claimants. 51. It is noted that one could use the terms “Treaty principles” (vis a vis New Zealand legislation52) and “Māori right to self determination” (vis a vis the DDRIP) interchangeably: the removal of either is unnecessary, may give rise to significant potential risk and negative impact on the relationship between many Māori and the Crown, and is deliberately ignorant and morally repugnant. Unfortunately, the The Government’s concerns about the former did not carry over to the latter.

Government’s anti-self determination stance flew in the face of strong opposition by many indigenous representatives and other states considering the Chair’s compromise text. They believed that the international law upon which the DDRIP was based provided sufficient guidance through which to interpret its provisions and balance competing rights, including recognition of collective indigenous rights vs individual ones. Lands, Territories and Natural Resources 52. Regarding the Articles relating to indigenous rights to lands, territories and natural resources (e.g. Articles 21, 27, 28, 30), the NZ Government sought at the Working Group (along with Australia and the USA) to replace “just and fair redress” and/ or “compensation” with “mechanisms to redress” and “pursue claims to redress”. As with the F & S Act and the Treaty Claims Settlement Negotiations process, the Government was attempting to replace actual rights merely with a process to determine those rights, and redress only. Redress is something less than compensation, the former indicating a political decision by Government, and the latter being a legal term which can be determined by the Courts.53 This kind of policy approach has already been found to be discriminatory by the CERD,54 the Special Rapporteur55 and others.56 In fact, there already exist Australian examples which show that indigenous groups can be
51 52

For example, the Saami Parliament in Norway and Finland. See para 24 above. 53 Analysis of the Chair’s Text prepared by Estebancio Castro Diaz and Tracey Whare, 15 June 2006, p7 – re A21. 54 See para 25 above. 55 Note 1 above, para 95, p21. 56 Leading indigenous peoples’ NGOs including the American Indian Law Alliance described New Zealand’s approach (which the government was actively lobbying for at the Sub-Commission as far back as September 2004, and earlier) as “discriminatory, colonial and racist”, and consistent with its “increasingly hostile approach” to indigenous peoples’ rights under international law: “Indigenous Rights Movement Alarmed by NZ’s Policy”, Scoop Independent News, 9 December 2005. 5/24/2012 Page 17 of 28

compensated financially for dispossession of land and resources currently owned by third parties, and that coexistence of proprietary rights is possible.57 53. The Government argued at the PFII that Article 20 confers "a power of veto over the laws of a democratic legislature". Article 20 reads, "States shall consult and cooperate in good faith with the indigenous peoples concerned…in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them."58 However, the objective of Article 20 is to require good faith consultation to seek indigenous peoples’ consent, not to actually obtain it.59 54. The abovementioned concerns about the Chair’s Text were consistent with what had been described as a “shock turnaround on the [DDRIP]”60 by Government at the UN General Assembly meeting in October 2005. The Government’s comments at that meeting that the DDRIP was “unworkable and unacceptable” apparently came as a “complete surprise to former delegates”,61 despite claims by Government that the New Zealand position on the DDRIP had “not changed during the eleven years of the negotiations in Geneva.”62 Collective vs Individual Rights 55. Finally, the Governments argued that the Chair’s Text assumes that individual rights "are a secondary consideration", for example that Article 34 (which recognises the collective right of indigenous peoples "to determine the responsibilities of individuals to their communities") allows collective rights to prevail over the human rights of individuals. 56. However, again Article 34 is qualified by Article 45 which provides that the exercise of that right requires that the "human rights and fundamental freedoms of all shall be respected…in accordance with international human rights obligations".

57

“Human Rights Features”, South Asia Human Rights Documentation Centre, 26-30 JUNE 2006, p4 (ISSN NO. 1541-2482, at website www.hrdc.net/sahrdc/hrcouncil06/index.htm). 58 For more on the Government’s view with regard to the principle of free, prior and informed consent of indigenous peoples, see its joint statement with Australia and the USA, PFII, 22 May 2006, Attachment Two. 59 This also highlights the concern by some Māori that Article 20 refers merely to a procedure - there is no actual right contained in the Article. This concern also relates to Article 30 “Development of Lands, Territories and Resources”. 60 Scoop Independent News, “NZ stance on Indigenous issues queried”, 15 November 2005. 61 “NZ stance on Indigenous issues queried”,see note 52 above. 62 Letter from Minister of Foreign Affairs, Winston Peters, dated 17 July 2006 – Attachment Three. While officials have claimed the Government position has not changed at all, the comments and explanations offered by the Crown at the December 2005 DDRIP Working Group “go far beyond” the explanations offered in the position paper from the Ministry of Foreign Affairs & Trade presented to the Technical Meeting convened by Ngatata Love & Aroha Mead on 9 August 2003: http://www.pcpd.org.nz/ddrip/ . 5/24/2012 Page 18 of 28

57. These considerations of the Government’s position on the Chair’s Text has led to criticism that Australia, New Zealand and the USA are taking “an unreasonably dismissive approach to the draft”.63 Chair’s “Compromise” Text - Government Procedural Recommendations 58. The Government’s suggestion to the PFII in May (supported by Australia and the US) was to recommend that states “pause and reflect very carefully”. Reports coming back from the Human Rights Council (the Council) in June 2006 were that the Government was again joining Australia and US in an attempt to re-route the DDRIP back into negotiations (rather than having it endorsed by the Council and from there for consideration by the UN General Assembly). The Government’s lobbying was assisted by and through Canada who, unlike New Zealand, Australia and the US is a Council member. Canada was ultimately one of only two states to vote against the adoption of the DDRIP at the Council’s First Session on 29 June 2006. Human Rights Council, June 2006 59. The first Session of the new Council64 was held in Geneva 19-30 June 2006. On 21 June, the Government included these statements in its intervention before the Council: a. "Standard setting will continue to be important. The draft Convention on the Rights of Persons with Disabilities is an important issue for the human rights community. New Zealand is honoured to chair the negotiations on the draft Convention, which we will strive to conclude this year.”(Para 5); and b. “New Zealand is committed to advancing the rights of other groups including women, children and indigenous peoples. However, consensus in setting new standards must be an objective. And, the new Human Rights Council needs to make sure that it delivers quality outcomes and supports proper process. Sadly, that is not yet the case with the Chair's text for the Draft Declaration on the Rights of Indigenous Peoples. New Zealand cannot associate itself with this text which, despite our most strenuous efforts and genuine intentions, remains fundamentally flawed. We want a consensus decision and a text that is capable of practical implementation." (para 6).

63

“Human Rights Features”, South Asia Human Rights Documentation Centre, 26-30 JUNE 2006, p5 (ISSN NO. 1541-2482, at website www.hrdc.net/sahrdc/hrcouncil06/index.htm). 64 This replaced the Commission on Human Rights. 5/24/2012 Page 19 of 28

60. Several commentators have made some interesting observations regarding these statements. There has been much curiosity about how the Government can ‘in the same breath’ express its honour at being associated with international standard setting in regards to the human rights of disabled persons, and then actively oppose a DRIP, particularly given its ‘shaky’ rationale (as mentioned above). The Government, along with Australia, the USA and now Canada, has become well-known in indigenous circles as one of “the most prominent opponents” of the DDRIP.65 The Chair’s Text - Māori Concerns 61. Strictly speaking, there was not a clear Māori view on the Chair’s Text. Procedurally, the Sub-Commission’s draft was approved - through a robust process - by Māori and other indigenous peoples as ‘the minimum standard’ for indigenous rights. However, there had not been a robust process for considering the Chair’s Text. Following the final Session of the Working Group, there was no mechanism established for any Delegations to express their opinion – supportive or otherwise - about the Chair’s Text which emerged. More to the point, however, the Government had refused to engage in robust consultation with Māori on the DDRIP since 200366 despite repeated requests from Māori for the same.67 Indeed, official Government responses treated Māori requests for consultation with contempt. For example, the Hon Winston Peters once replied in the House that “perhaps the best answer is this: in consulting the indigenous people, the Government appointed one as the Minister of Foreign Affairs”.68 62. Despite the lack of a consultation process, several Māori who had been involved in the DDRIP negotiations over the years had done some analysis on the Chair’s Text. They compared it with the Sub-Commission draft and concluded that the Chair’s Text was on balance significantly weaker on the articles including but not limited to self determination, and lands, territories and natural resources (as discussed above).69

65

“Human Rights Features”, South Asia Human Rights Documentation Centre, 26-30 JUNE 2006, p3 (ISSN NO. 1541-2482, at website www.hrdc.net/sahrdc/hrcouncil06/index.htm). 66 A position paper from the Ministry of Foreign Affairs & Trade was presented to the Technical Meeting convened by Ngatata Love & Aroha Mead on 9 August 2003: http://www.pcpd.org.nz/ddrip/ . Since this paper was presented, the Crown has not conducted any further meetings with Maori as a collective, nor has the Crown released any additional information or elaboration on it's dDRIP position. 67 Including an online petition containing 1000+ signatures: see http://www.pcpd.org.nz/ddrip/ . 68 Te Ururoa Flavell; Maori Party Spokesperson for International Affairs, Press release, 30 June 2006 “Maori Party Commends the Courage of the UN Human Rights Council to adopt the UN Declaration on the Rights of Indigenous Peoples”. Of course, this is of little comfort to Māori, given that the Winston Peters’ Party supports the Bill to remove all references to the principles of the Treaty in legislation. 69 Refer also to letter from Ngā Pa eo Te Maramatanga, Auckland University, advising of the resolutions regarding the DRIP and the Chair’s Text that were made at the International Conference on Traditional Knowledge, 17 June 2006. 5/24/2012 Page 20 of 28

63. Those Māori that did choose to express an opinion therefore had little choice but to retain support for the Sub-Commission draft. In addition, Maori delegates at the PFII in May 2006 where the Chair’s Text was considered abstained from any decision on the Text. This was in recognition that Māori concerns – even the substantive ones - were largely about the dysfunctional Māori-Government relationship which needed to be resolved internally and separately from the DDRIP discussions. 64. There was also significant support in the international community for the Chair’s Text. Both indigenous groups and states were taking a pragmatic approach considering the length of time taken to negotiate the DDRIP, the possibilities that the DDRIP would get shelved if it went back into another round of negotiations (where it was perceived that entrenched positions were unlikely to change anyway), the uncertainty surrounding the new Council, and the need to pass the DDRIP urgently given that it had failed to be adopted in the First International Decade of the World’s Indigenous People. It was therefore thought that not actively opposing the Chair’s Text was the best approach to maintain integrity regarding Māori concerns while at the same time avoiding conflict on the progression of the DDRIP. Instead Māori focussed on the Government, asking that it:70 a. Refrain from its current unhelpful stance, and decline to make any further interventions opposing the Declaration at the UN Human Rights Council or other fora. b. Re-open meaningful dialogue with Maori in regard to the Declaration and the Chair’s text. c. Assist Maori to hold appropriate dialogue on the issues.

65. It is difficult to see how failing to engage with the people who will be most affected by the DDRIP meets any standard, under te Tiriti or internationally, of proper consultation. The Government is hypocritical to infer that it has the best interests of Māori at heart while treating Māori in this way. WHAT HAPPENS TO THE WAI 262 RECORD OF INQUIRY? 66. Te Rarawa has concerns as to what is to happen with the Wai 262 record of inquiry and in particular, the traditional evidence once the claim has been completed and reported upon. These concerns are shared by Ngati Kuri and Ngati Wai. As we understand it, these
70

Letter to Minister of Foreign Affairs 22 June 2006 from Moana Jackson, on behalf of over 60 participants at the DDRIP seminar during the International Conference on Traditional Knowledge, 17 June 2006. 5/24/2012 Page 21 of 28

records (except for evidence subject to confidentiality) are available for public research purposes and access can be granted without permission being sought from the deponent. I also understand that the tribunals records are being handed over to the National Archives so that in effect, our matauranga that has been given to the tribunal specifically for the purpose of proving our claims against the Crown, becomes the property of the Crown who can then dictate who has access to that Matauranga in the future. 67. In my opinion, this is a rather perverse outcome given that the Wai 262 claim is concerned with ensuring proper protection is given to Maori knowledge, who “owns” that knowledge and controls access to it. 68. In the opinion of Te Rarawa, only Te Rarawa and its witnesses should have control over its traditional evidence once the purposes for which that evidence has been satisfied. Certainly the Crown should not own and control this knowledge. The same applies to traditional knowledge provided by other tribal claimants to this Tribunal. 69. In addition I believe that a National Maori entity separate from the Crown needs to be established that has the role and function as Kaitiaki over all Matauranga Maori in the public domain including film archives, national archives and other cultural and intellectual heritage of Maori peoples. How this body could be established, mandated and funded would be the subject of discussion and debate at the consultation Hui that the Tai Tokerau claimants have called for under this claim. SUGGESTIONS FOR MOVING FORWARD 70. Seeking self-determination under a DRIP is analogous to claiming tino rangatiratanga under te Tiriti. While strictly speaking declarations are not enforceable, the DDRIP is already of considerable moral force. The Waitangi Tribunal has the opportunity under this Inquiry to send a clear message to the Crown that it cannot so easily ignore its obligations to Māori under te Tiriti as it is doing on the international stage. 71. Some personal suggestions for moving forward in relation to international issues concerning Māori and the Crown include that: a. The Crown enter into dialogue with Māori regarding Crown assistance to achieve Māori capacity to meaningfully engage with the Crown on issues regarding te Tiriti at the international level. This is one of the aims of the Wai 262 claim and should ideally follow a series of regional hui to discuss various options. In this respect, the Crown should consider, among other things, assisting with the establishment of:
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i

Funding for Māori participation in key Pacific Regional and international

meetings pertaining to issues of importance and relevance to Maori; and i. Regular engagement (including engagement protocols) with Māori concerning the NZ Government’s stance on national and international issues of relevance and importance to Maori; and b. The Crown implement the recommendations of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People concerning his Mission to New Zealand in November 2005.

Catherine Davis:

11 August 2006

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Attachment One: Statement by Australia, New Zealand and the United States of America on the Declaration on the Rights of lndigenous Peoples Permanent Forum on Indigenous lssues 17 May 2006 Madame Chair, distinguished delegates, I am making this statement on behalf of Australia, New Zealand, and the United States of America. Madame Chair, Australia, New Zealand, and the United States of America supported the establishment and the work of this Forum. Over its relatively short history, the UN Permanent Forum has contributed to the promotion of issues affecting indigenous peoples. lt is serving to bring their concerns into direct engagement with the United Nations. We welcome that, Madame Chair. Madame Chair, this Forum was one of the main achievements of the first international decade of the world's indigenous peoples. lt is disappointing that another objective of that decade - to elaborate a Declaration on the Rights of lndigenous Peoples - has not been met. lt has been impossible to reach a consensus amongst States on a text. The Chair's "final compromise text", which was annexed to his report to CHR earlier this year (E/CN.4/2006/79) is an improvement on the original Sub Commission text and a possible basis for further consideration. But, it does not enjoy consensus. There is no agreement on most of its crucial provisions, as the Chair himself has acknowledged. lt, therefore, remains fundamentally flawed. Madame Chair, the provisions for articulating self-determination for indigenous peoples in this text, for example, are inconsistent with international human rights law. Indeed, some of its provisions attempt to reinterpret the Covenants. They could be misrepresented as conferring a unilateral right of self determination (Article 3) and possible secession upon a specific subset of the national populace, thus threatening the political unity, territorial integrity and indeed the security of existing UN Member States. Article 3 in the text, unqualified as it is at present, has the potential to create instability. The draft text also appears to confer upon a minority, a power of veto over the laws of a democratic legislature (Article 20). While we strongly support the full and active engagement of indigenous peoples in democratic decision-making processes, no government can accept the notion of creating different classes of citizenship. Nor can one group in society have rights that take precedence over those of others. ln this context, it is important to be mindful of the Convention on the Elimination of Racial Discrimination. Madame Chair, the provisions on lands and resources are particularly unworkable and unacceptable. They ignore the contemporary realities in many countries with indigenous populations, by appearing to require the recognition of indigenous rights to lands now lawfully owned by other citizens, both indigenous and non-indigenous (Article 26). Such provisions would be impossible to implement. Other important provisions in the Chair's text are potentially discriminatory. lt seems to be assumed that the rights of all individuals, which are enshrined in international law, are a secondary consideration in this Declaration. Collective
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rights do not prevail over the human rights of individuals, as implied in Article 34 of the text. That only confirms that this text it is fundamentally flawed in its most significant provisions. Madame Chair, any attempt to put this text forward for endorsement in the United Nations would be disingenuous and irresponsible. lt lacks consensus support and thus any moves to adopt it by the new Human Rights Council would establish a dangerous precedent. lt would also risk creating confusion, ambiguity and endless debate on what the Declaration means. Endorsement of this text, which many States - even with the best of intentions - could never live up to, would be a gross disservice to indigenous people. And, it would potentially undermine the cause of advancing human rights internationally. Many other countries, representing all regions, have shared their concerns in this regard with our respective governments. States need to pause and reflect very carefully indeed on the very obvious shortcomings in the current text before any action on it could be legitimately contemplated in the United Nations. Madame Chair, Australia, New Zealand, and the United States of America want a Declaration that can become a tangible and on-going standard of achievement. To achieve that, it must be universally accepted, observed and upheld in order to have political and moral force as a Declaration. None of us want a Declaration that, at its outset, is regarded as artificial, unrealistic, simply rhetorical, and thus ultimately irrelevant. The situation for indigenous people in some countries is very worrying indeed. What is needed is a new standard of achievement that has the potential to make a real difference in their circumstances and one that is an investment and positive force in their futures. Sadly, the current text falls well short of ever achieving that. lt would be in effect, Madame Chair, a lost opportunity. Madame Chair, I thank you.

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Attachment Two: Permanent Forum on Indigenous Issues Statement by Australia, New Zealand and the United States of America on Free Prior Informed Consent 22 May 2006 Madame Chair, I am making this statement on behalf of Australia, New Zealand, and the United States of America. Australia, New Zealand, and the United States of America note the recent efforts of the Permanent Forum to attempt to define and promote a principle or “right” of free, prior informed consent in relation to indigenous peoples (also referred to as a right of prior informed consent, or informed consent or similar). We note also that other international fora are discussing free, prior and informed consent. These include the convention on biological diversity, the WIPO IGC on intellectual property and genetic resources, the working group on indigenous populations, UNESCO, UNCTAD, UNDP and the World Bank. Australia, New Zealand, and the United States of America note that these issues are complex and are significant to indigenous peoples, particularly in light of the historical experience of many indigenous peoples. Australia, New Zealand, and the United States of America consider that discussions about any such principle or “right” are far from complete. The international workshop on free, prior informed consent sponsored by the Permanent Forum in 2005 highlighted that there are widely different views about the content and application of any such principle amongst states and indigenous peoples, and discussions about it in other international forums (such as WIPO and the CBD) are still ongoing. It is therefore premature to refer to the conclusions of the workshop as reflecting “a common understanding of free, prior informed consent”, as stated in the report. Indeed it is relevant to recall that the recommendations of the workshop are expressed in nonmandatory language, and recognise that the consent process “may include the option of withholding consent”, rather than “must”. The recommendations also focus on “consultation” and “participation” rather than “consent”. Nonetheless Australia, New Zealand, and the United States of America consider that the recommendations are premature and do not reflect “common understanding”. Some aspects of the recommendations are also vague in meaning or would be impossible to achieve in most situations, such as “equal access to financial, human, and material resources” for “all sides in a free, prior informed consent process”. It is our firm position that there can be no absolute right of free, prior informed consent that is applicable uniquely to indigenous peoples and that would apply regardless of circumstance. In fact to extend such an overriding right to a specific subset of the national populace would be potentially discriminatory. it is of course widely accepted that individuals and groups should be consulted about decisions likely to impact on them in particular. This includes the opportunity to participate in the making of such decisions, at the very least through both the formal and informal processes of democratic government, as recognised in the international covenant on civil and political rights. The Convention on the Elimination of Racial Discrimination also guarantees that there shall be no discrimination in the exercise of such rights, including in the conduct of public affairs (which includes the exercise of legislative, executive or administrative power). But, as
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acknowledged by the Human Rights Committee, that does not imply a right to choose the modalities of participation in the conduct of public affairs. it is an entirely different matter to assert, as has been done in the context of developing the draft declaration on the rights of indigenous peoples, that particular sub-groups of citizens have a right of veto (in the form of withholding their consent) over the actions of governments and legislatures. It has been asserted, for example, that the enactment of laws by democratically elected parliaments should be subject to the prior consent or veto of a particular sub-group of the population. And, in addition, that this right should apply to any law, policy, program or decision affecting the group, either directly and specifically or even indirectly by virtue of being part of the total population affected. Clearly this is not a position that a government, democratically chosen to represent the interests of all its citizens, could accept. Democratic government is about reconciling competing rights and interests. And indeed that is also why even many human rights (such as the right to freedom of expression or opinion) are not absolutes and why there are general provisions in the key human rights instruments which provide limitations such as for national security and to ensure respect for the rights and freedoms of others. References have been made (such as in the report of the international workshop sponsored by the Permanent Forum) to various legal or other sources for such a principle of free, prior informed consent. For example, the right of self-determination of all peoples in the human rights covenants, various articles in ILO convention 169 and the WQIP draft declaration on the rights of indigenous peoples, certain recommendations and observations of human rights treaty bodies, and instruments under the convention on biological diversity. However, the meaning of the right of self-determination in the two covenants has been the subject of much disagreement in the working group on the draft declaration on the rights of indigenous peoples. ILO 169 has not been ratified by most states, and the other sources mentioned are still under discussion or are otherwise non-binding. Further discussion about these sources and any “right” of free, prior informed consent – and as to when it might or might not apply - is therefore necessary. Australia, New Zealand, and the United States of America support efforts to increase indigenous peoples’ participation in decisions that affect them, whether in the form of international processes, such as this forum itself, or domestic arrangements designed to protect and advance indigenous interests. This applies in particular to such areas as land and resources, culture and heritage, traditional knowledge and intellectual property. But the fundamental point is that neither indigenous nor non-indigenous peoples enjoy an overarching or exclusive right of free, prior informed consent, regardless of circumstance. Australia, New Zealand, and the United States of America’s position is that discussions about indigenous participation in decision-making must recognise that different approaches may be necessary in different circumstances, and must balance the rights and interests of all those affected, including the responsibility of governments to act in the interests of the common good.

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Attachment Three: Below is the text of a letter received from Winston Peters, Minister of Foreign Affairs, that clearly sets out the NZ government's deplorable position on the Declaration on the Rights of Indigenous Peoples, which was adopted by the Human Rights Council on 29 June by a vote of 30 in favour, 2 against, and 12 abstentions. This is the reply from Mr Peters to a letter from an individual who wrote to him in response to our action alert Act today for indigenous peoples' rights.71 17 July 2006 "New Zealand's position on the text for the declaration has been articulated on many occasions. It has not changed during the eleven years of the negotiations in Geneva. Furthermore, the government has engaged with interested Maori and others on the Declaration repeatedly during that time. Feedback from these discussions informed the development of the government's policy which was determined by Cabinet. The fact that the small number of those who have been interested in this issue in New Zealand have tended to support a position of no change to the original and unacceptable text has limited the opportunities for a meaningful or constructive engagement. New Zealand will not be in a position to support the text of the declaration, which was adopted by a less than decisive vote by the members of the Human Rights Council recently in Geneva. We worked hard to get a text that all countries could support and implement. Unfortunately, the text that has been adopted is not consistent with international law, is potentially discriminatory and is not capable of being implemented by States because many of its provisions are unworkable. This was not the outcome New Zealand and other countries such as Canada, Australia and the United States wanted. It is deeply disappointing that the world's indigenous peoples have been delivered a second rate outcome and one that does not enjoy consensus internationally. " Yours sincerely, [signed]

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http://www.converge.org.nz/pma/in170706.htm#wp. 5/24/2012

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Rt Hon Winston Peters Minister of Foreign Affairs. ______________________

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