Separatist or radically inclusive? What He Puapua report really says on Declaration on the Rights of Indigenous Peoples

Credit: Original article can be found here


For many New Zealanders, He
Puapua
came shrouded in controversy from the moment it
became public knowledge earlier this year.

Released
only when opposition parties learned of its existence, the
report on “realising” the United Nations Declaration on
the Rights of Indigenous Peoples was labelled a “separatist
plan by National Party leader Judith Collins.

“Quite
clearly there is a plan,” Collins
said
, “it is being implemented, and we are going to
call it out.”

But He Puapua is not a plan and it’s
not government policy. It’s a collection of ideas drafted
by people who are not members of the government. To
understand its real significance we need to examine how and
why it was commissioned in the first
place.

Self-determination for all

He
Puapua’s origins can be traced back to 2007 when the UN
adopted the Universal
Declaration on the Rights of Indigenous Peoples
,
confirming the human rights affirmed in all previous
international declarations, covenants and agreements
belonged to Indigenous peoples as much as anybody
else.

It confirmed the right to self-determination
belongs to everybody. Thus, in New Zealand, Pakeha have the
right to self-determination, and so do Māori.

At the
time, 143 UN member states voted
for the declaration
, including the major European
colonial powers of Britain, Belgium, France, Spain, Portugal
and the Netherlands.

There were 11 abstentions, but
four states voted against — Australia, Canada, New Zealand
and the United States. They were especially concerned about
the scope of Article 28(2) which deals
with compensation
for confiscated or other dishonestly
acquired land:

Unless otherwise freely
agreed upon by the peoples concerned, compensation shall
take the form of lands, territories and resources equal in
quality, size and legal status or of monetary compensation
or other appropriate redress.

New Zealand
was worried this article would justify returning much more
Māori land than was already occurring under te Tiriti o
Waitangi (Treaty
of Waitangi
) settlements.

Future
aspirations

However, the phrase “other appropriate
redress” is open to less restrictive interpretation. In
2010, the National-led government decided the declaration
did not threaten freehold private property rights.
Then-Prime Minister John
Key argued
:

While the declaration is
non-binding, it both affirms accepted rights and establishes
future aspirations. My objective is to build better
relationships between Māori and the Crown, and I believe
that supporting the declaration is a small but significant
step in that direction.

Australia, Canada
and the United States also changed
their positions
. In 2019, New Zealand’s Labour-led
government established a working group to advise on
developing a plan for achieving the aims of the UN
declaration. These aims are not just concerned with land
rights, but also with things like health, education,
economic growth, broadcasting, criminal justice and
political participation.

Read more:
New
authority could transform Māori health, but only if it’s a
leader, not a
partner
 

Not
government policy

He Puapua, the group’s report,
was provided to the government in 2019. However, the
government didn’t accept a recommendation that the report
be promptly released for public discussion. According to
Prime Minister Jacinda Ardern, this was due to the risk it
could be “misconstrued
as government policy.

Nevertheless, it has now been
released and the government appears to have accepted the
recommendation that Māori should be actively involved in
drafting a plan.

Collins also objected to the
report’s description of this involvement as
“co-design”. What she can’t say, however, is that
including people in policy making is separatist. Inclusion
is an essential democratic practice.

He Puapua also
uses co-design to describe Māori involvement in the
delivery of social services and the protection of the
natural environment. This involvement isn’t new, but He
Puapua says it should be strengthened.

And while there
may be arguments against this kind of inclusivity (for
example, co-design is a weaker authority than the rangatiratanga
affirmed in te
Tiriti
), calling it separatist is an error of
fact.

Read more: The
Crown is Māori too – citizenship, sovereignty and the
Treaty of
Waitangi
 

Securing
rangatiratanga

Rangatiratanga describes an
independent political authority and is consistent with
international human rights norms. It has gradually
influenced public administration in New Zealand under
successive governments over more than 40 years.

He
Puapua says there are human rights arguments for
strengthening and securing rangatiratanga.

In fact,
the UN declaration
may help clarify how independent authority might work in
practice, especially in the context of the Crown’s right
to govern — which the declaration also
affirms.

Separatism versus sameness

He
Puapua’s potentially most controversial idea involves
creating “a senate or upper house in Parliament that could
scrutinise legislation for compliance with te Tiriti and/or
the Declaration”.

There are reasons to think this
won’t get far. The government has already rejected it, and
the idea was raised in just one paragraph of a 106-page
report. But its inclusive intent shows why “separatism
versus sameness” is the wrong way to frame the
debate.

Read more: The
road to reconciliation starts with the UN Declaration on the
Rights of Indigenous
Peoples
 

What
it means to ensure all, and not just some,
people may exercise the right to self-determination requires
deeper thought. In that sense, He Puapua might usefully be
read in conjunction with British Columbia’s draft
action plan
on the UN declaration.

Released only
last month for public consultation, the plan coincided with
the Canadian federal parliament passing legislation
committing to implement the declaration. The British
Columbian plan addressed four
themes:

  • self-determination and inherent right of
    self-government
  • title and rights of Indigenous
    peoples
  • ending Indigenous-specific racism and
    discrimination
  • social, cultural and economic
    well-being.

Read more:
Included,
but still marginalised: Indigenous voices still missing in
media stories on Indigenous
affairs
 

He
Puapua in practice

Some of the plan’s specific
measures are not relevant to New Zealand and some may be
contested. But its important general principles draw out
some of the basic attributes of liberal
inclusivity.

Those include ensuring people can live
according to their own values, manage their own resources,
participate in public life free of racism and
discrimination, and define for themselves what it means to
enjoy social, cultural and economic
well-being.

British Columbia’s far-reaching
proposals can inform New Zealand’s debate about what He
Puapua’s proposals might mean in practice.

As I try
to show in my book ‘We
Are All Here to Stay’: citizenship, sovereignty and the UN
Declaration on the Rights of Indigenous Peoples
, there
are ways state authority can be arranged to reject the
colonial assumption that some people are less worthy of the
right to self-determination than others.

This requires
radical inclusivity.

The Conversation

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