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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 16 April 2015
THE FACE BEHIND THE LAW: THE UNITED NATIONS AND
THE
RIGHTS OF INDIGENOUS PEOPLES.
Moana Jackson*
In recent years Maori people have adopted many strategies to protect and advance the well being and visions implicit in the exercise of tino rangatiratanga. Much of that work has been done at home, but an increasing number of Iwi and other Maori organisations are now participating in international affairs that are seen to have some relevance to our lives. They are joining a worldwide movement by Indigenous Peoples to reassert their rights and reclaim their rightful place.
One particular area of Maori involvement has been the drafting of the United Nations Declaration on the Rights of Indigenous Peoples. It has been at times an experience in which the often frustrating task of dealing with one Crown in AotearoalNew Zealand is exacerbated by having to deal with over one hundred of them in Geneva. But it is made more difficult by the fact that the colonising construct that continues to shape events in this land is writ even larger in the international arena. Ani Mikaere recently (and correctly) observed that colonisation is more than a process from history because "for Maori, there has been no end to it. It is not simply part of our recent past, nor does it merely inform our present. Colonisation is our present" I At the United Nations it informs everything that happens in the drafting of the Declaration, and nowhere more so than in the constructs of law which shape the process.
Moana Jackson is Ngati Kahungunu/Ngati Porou. A graduate in law from Victoria University he works mainly on Treaty/constitutional issues and international indigenous rights. He has served as Chair of the Indigenous Caucus of the United Nations Working Group on the Rights of Indigenous Peoples and is a member of the UN Committee on Indigenous Rights. He has also sat as a judge on the International People's Tribunal hearing indigenous claims in Hawaii, Mexico and Canada.
1. Mikaere, Ani. Waikato Law Review, Vol 2, 1994, P142.
LAW AS MAGIC:
Any contemporary consideration of the rights of Indigenous Peoples at international or domestic law takes place within a discourse where history jostles with myth and different notions of reality collide. In New Zealand, where recent (if now somewhat stultified) judicial activism led to the perception that the courts could deliver "victories" to Maori, that discourse has been particularly misleading. 2
Indeed the whole basis of the recent Treaty of Waitangi jurisprudence has been a text of rights taken out of context and a Treaty reading firmly sourced in just one reality. The Courts and the Waitangi Tribunal have constructed a notion of Treaty rights that depends upon the transformation of the treaty idea from an international context to a domestic one, and the description of Maori rights as inherently subordinate to those of the Crown. One result has been a frenetic and profitable exercise in which lawyers have struggled to find ways of defining Maori rights that appear to acknowledge the special place of the tangata whenua without disturbing the Crown's insistence on a reality where it has the only special place that really matters. Another, and more important result, is that the Maori rights that should be recognised in terms of our humanity are actually reconceptualised within a framework where they depend on the extent to which law is prepared to concede that we are human.
That result flows inevitably from the historical context of colonisation where the states of Europe developed their whole notion of indigenous rights within a religious, social and political debate about whether Indigenous Peoples were in fact human. For a long time they simply concluded that they were not, and they drew on ancient Greek ideas about the"natural" slave and Christian doctrines about the evil heathens to conclude that beings so naturally inferior could not possibly be human.
When they finally concluded that Indigenous Peoples had souls and were in fact human they nevertheless continued to argue that their
2. See Cooke, P. in NZMC v Attorney General (1987) 6 NZAR.353.
heathenness and general savagery consigned them to a lesser human status. They were trapped on a lower rung on the ladder of human progress and worth, and had not attained the full human state of those who lived in Europe. They were defined within what the Iroquois historian John Mohawk has called the "utopian vision" of European thought that "presented western civilisation as an adventure of discovering the perfection of human potentials.. .the vanguard of.. .human societies". 3 To be European was to be the perfect human, to be indigenous was to be naturally less so.
When that cultural certainty was translated into the jurisprudence that would deal with the relationship between European and Indigenous Peoples after 1492, the result was inevitable. Any rights which the colonisers were prepared to grant those they wished to colonise would be lesser rights in keeping with their worth. Thus the very notion of a colonising state's obligation to "protect" indigenous rights requires an assumed relationship between a superior or dominant figure of power and a less powerful, childlike one. Rather like a father's obligation to protect his child it was a relationship that necessarily implied an inequality of power and an inability or incapacity on the child-like party to exercise proper adult rights. The child was deemed to be naturally less capable and therefore needed to be protected from his or her own inadequacies.
The Spanish canon lawyer Franciscus de Victoria summed up the legal ramifications of those inadequacies in 1532.
"Although the aborigines are... not wholly unintelligent, yet they are little short of that condition and so are unfit to found or administer a lawful State up to the standard required. It might therefore be maintained that in their own interests the sovereigns of Spain might undertake the administration of their country... There is no doubt that this would not only be permissible, but also a highly proper course to take; nay our sovereigns would be bound
to take it just as if the natives were infants". 4
That sort of protection of Indigenous Peoples effectively
meant their dispossession. Indeed Caren Wickliffe has noted that "In this
situation a tutelage relationship could be established whereby the sovereignty
of these 'inferior' indigenous polities could be usurped
by the superior
European civilisations. Indigenous peoples would be the recipients of this new,
more civilised order, under the guardianship
of their colonisers".
5
The Anglo-American jurisprudence of "aboriginal rights" or "aboriginal title" proceeded from a similar assumption. While good Christian nations acknowledged that all peoples were the children of God, Indigenous Peoples were nevertheless "unfit" to have all of the full rights that He intended. Thus while the colonisers' law placed an obligation on colonising states to protect Aboriginal title in the land that they had held since time immemorial, the title itself was subject to the newly assumed and naturally superior power of the colonisers. They could extinguish it (through the proper channels), they could determine what it was, and they could demand that the aboriginals proved that they had in fact had it since time immemorial.
It was a title that vested in Indigenous Peoples not by virtue of their humanity, but in terms of their lesser human worth as defined by the colonisers. It was based upon a presumption that when the superior protector arrived on the scene "the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily to a considerable extent, impaired.. .Their rights.. .were necessarily diminished". 6 Their place was "necessarily" not as human as others were.
Those views "necessarily" underpin the contemporary Treaty jurisprudence in this country. The context that it grew from, and its inherent denial of the humanness of our people is not acknowledged today, but is instead cloaked in the language of partnership and a
relationship built upon the Treaty as the "nation's founding document. Yet inherent in the whole discourse is the persistent assumption that Indigenous Peoples necessarily have lesser rights because we are less human. When the Court ofAppeal stated that "the Queen was to govern and Maori were to be her subjects" it used the language of constitutional convention but reaffirmed the language of our necessary subjection. 7
It was another instance of what Sir Paul Reeves once referred to at the United Nations as the "colonial power" using "the treaty to legitimise its own presence".8 It was also a case of law transforming its dubious origins into a new mythology where its reaffirmation of the colonial status quo is masked behind a new image of good faith. It is what the Lumbee jurist David E. Wilkins has called "law as magic". 9
The recent efforts of Indigenous Peoples to define and protect their rights through the United Nations Draft Declaration on the Rights of Indigenous Peoples have encountered the same "magic". Indeed the debate on the right of self-determination within the Draft has been for Indigenous Peoples a long and difficult struggle with an illusion that the old ideas of our "necessarily diminished" rights may have at last been rejected. Sadly that is not the case, and the Indigenous Peoples involved have constantly been confronted with the reality that the unacknowledged interrelationship between law and the colonising imperative is still the guiding motive of most of the states involved, including New Zealand. The debate continues to occur within a discourse where history jostles with myth and different notions of reality collide.
INTERNATIONAL LAW AND INDIGENOUS PEOPLES:
Indigenous Peoples have been going to the United Nations to seek international recognition of their rights since 1977 when a group of mainly North and South American Indians met in Geneva. Others had
sought international acknowledgement before, including our people on several frustrating trips to England in the 19— century. A delegation of Maori even tried to get to the League of Nations in 1923, as did the Iroquois and Onandaga peoples. In each case they were either denied access or their complaints were rejected because they had no standing in international law.
When the UN Working Group on Indigenous Populations (WGIP) was finally established after the 1977 conference the reasons for those earlier rejections continued to underpin its operations and most of the views of the states that chose to get involved. For although WGIP was originally mandated in 1982 to develop a minimum set of "international standards" concerning the rights of Indigenous Peoples it was inevitably bound by the context and history of international law.
International law developed originally between the Christian states of Europe as a means of regulating their behaviour with each other. It was a unique and restricted club that Chancellor Woolsey defined as dealing with "the aggregate of the rules which Christian States acknowledge as obligatory in their relations to each other, and to each other's subjects". 10 It existed to protect Christian interests, and although some early natural law theorists hinted at the existence of "universal" rights that might apply to non-Christians they were necessarily seen as subordinate. Even that limited recognition was dismissed when the Christian States became Christian colonisers. The Apache jurist James Anaya has noted that in fact international law "changed into a state-centred system, strongly grounded in the Western world-view; it developed to facilitate colonial patterns developed by European states and their offspring, to the detriment of Indigenous Peoples". 11
It assumed that if the Indigenous Peoples being colonised by Europe were to have any rights at an international level they would "necessarily" be of a lesser nature. For inherent in the process of colonisation was
10. Cited in "International Law Chiefly As Interpreted and Applied In the United
States," Charles Cheney Hyde, Penn Press, Vol 1, 1922, P1.
Anaya, S James, "Indigenous Peoples In International Law," Oxford University
Press,1996, P9.
the assumption that Indigenous Peoples did not make up States or nations. Instead they were trapped in a primitive form of tribalism that lacked the characteristics of civilised Statehood as understood in Europe. It was therefore impossible to acknowledge them fully within an "inter-nation" law because as Thomas Hobbes noted "the savage people.. .have no government at all; and live at this day in that brutish manner". 12 If they did not have States, they could not have the rights of the people in States.
Although that reality is as unacknowledged in WGIP as it is in the domestic context of Treaty rights, it has nevertheless hampered the constructive development of a Declaration to acknowledge the full rights of Indigenous Peoples. Indeed in the fundamental discussion on the right of Indigenous Peoples to be self-determining it has proved to be almost insurmountable. It is creating a situation in which the good faith involvement of many Indigenous Peoples in the drafting process is being frustrated. It also raises the very real possibility that the Draft will not be a declaration of indigenous rights as understood by Indigenous Peoples but rather a set of rights defined for them by States.
THE DRAFTING PROCESS:
The result of that context has been that the commitment and camaraderie of the Indigenous Peoples who have worked on the Draft Declaration have all too often been underpinned with despair and pessimism. Although many delegations have included indigenous scholars who are recognised among the leading experts on international law, their involvement has always been more than a drafting exercise or an abstract dialogue about the textual accuracy of a particular right. Instead it has been an attempt to break through the abstractions in order to see both the context in which international law continues to situate Indigenous Peoples, and to clearly re-site our rights in our inherent humanity rather than within a concept where someone else defines their nature and extent. It is a textual issue only in the sense that it is an attempt to articulate our reaffirmation and our survival as full human beings.
12. Hobbes, Thomas, "Leviathan," (1651) ed Richard Tuck, Cambridge University
Press, .1991, P 89.
The late Kawaipuna Prejean expressed this motivation in 1990 when he told the indigenous caucus "Very few of us here are lawyers and academics. But we are all indigenous, and that is what drives us. It is the need after hundreds of years of colonisation to restate that we are human, and we are therefore entitled to all the rights which international law now says all humans are entitled to. If the States do not recognise that, then all their legal talk and all their concerns about whether the Draft is consistent with international norms are just a smokescreen that hides the oppressive face behind their law. For them it might seem just a debate about fine legal points, but for us it's survival". 13
The drafting of the Declaration in WGIP and its subsequent transfer to a special "Inter-Sessional Working Group" (ISWG) has been marked by the different imperatives of Indigenous Peoples and States. In essence it is a tension between realities. That of Indigenous Peoples seeks protection from an ongoing oppression, and a rejection of the colonial construct of our lesser humanity that has effectively excluded us from being full members of what used to be called the "Family of Nations". It is indeed a matter of survival. That of the states is the contextual legacy of colonial law (whether domestic or international) and the consequent ideas it developed about the nature of States, their sovereignty, their territorial integrity, and their legitimacy. It is a matter of holding onto the reality of power that colonial dispossession has helped create.
Although a number of States have been increasingly responsive to the indigenous reality (most notably some Scandinavian states and Fiji), the majority have been unwilling to move beyond the narrow paradigm of state-centred authority. The so-called CANZUS group of Canada, Australia, New Zealand and the United States has been actively involved in all stages of the process and often appears to ally itself with the Scandinavian bloc. However a close analysis of their interventions indicate that an apparent good faith willingness to articulate meaningful rights standards is in fact merely a subtle tinkering with the colonising
13. Minutes Of Indigenous Peoples Caucus, World Council of Churches, July 7,1990.
legacy that some other states are more honestly open about protecting. Indeed
the CANZUS group has adopted the same sort of approach
as that taken in the
domestic law's present refinement of Treaty or aboriginal rights. It proclaims
its approach to the Declaration
as a victory for Indigenous Peoples without
acknowledging that it actually sustains the subordination first demanded in the
process
of colonisation.
The difficulties created by this tension between the
indigenous and State parties are a persistent undercurrent in the drafting of
the Declaration. Its origins lie in the history of law as colonising magic.
THE BASIS OF THE TENSION:
The tension first came to the fore during the 1980's when the International Labour Organisation (which is an organ of the UN) began to draft the ILO Convention on Indigenous and Tribal Peoples. In the UN and international law context the term "self determination had a particular meaning that arose essentially as a right for those "peoples" in colonised territories who were granted independence after World War Two.
They were all Indigenous Peoples of course, but the States members of the UN devised a decolonising project that only recognised a right of self-determination in certain cases. They drew a distinction between those who were still colonised by a foreign power across the sea (as, say, Kenya was by Britain) and those who were colonised by settlers who now constituted a majority sovereign State (such as New Zealand). The former group, who became known as "blue water" or "salt water" colonies, were entitled to be independent in their own lands again. However those who had become a minority in a "settler colony" were not, ostensibly because the Western concept of majoritarian democracy applied and to grant self-determination to the minority colonised might jeopardise the rights of the majority coloniser.
It was in fact a very self-serving project situated firmly in the colonising context. In a country such as New Zealand the ideal of majority rule never had sanctity or currency when Maori people were the majority, and the notion that colonisation only occurred "over the water" was simply a myth. Perhaps more importantly, however, the decolonising
project meant that the right of self determination came to be seen as something that only vested in those peoples entitled to be decolonised according to the Statist interests of the United Nations. It implied a right to secede from the former colonial power and establish (or reestablish) their own polity on terms acceptable to their former colonisers. An equally important consequence was that the process actually redefined the UN Charter. Article One, para 2 of the Charter stated that one of the aims of the organisation was to promote the "equal rights and self determination of peoples," yet the arbitrary nature of decolonisation created a distinction between peoples in the "blue water" colonies, and those in the "settler colonies". The former were effectively redefined as independent citizens of a new State who became "real" people at international law. The latter became an "ethnic" minority still trapped as not really real people in the language of colonisation
Of course Indigenous Peoples have never regarded themselves as either ethnic or a minority. Indeed counsel for the Lubicon Cree Sharon Venne told WGIP in 1992 "Indigenous Peoples are not ethnic. Ethnic groups are inventions of the White colonisers who are restricted to dancing, singing, and owning restaurants. We are not 'minorities' because that term places us in relation to a dominant numerical group when the only relationship that our creator put us in was the one with our lands. The numbers game is a peculiarly Western one". 14
That has been a consistent view of all Indigenous Peoples, including Maori, whose self defining process has always been "tangata whenua" not "tangata nama". But the distinctions between "peoples" that was created by the decolonising process, and the consequent meaning of "self determination," were embedded as realities within the relations between States. When the IL0 Convention was drafted using the term "peoples" it was therefore inevitable that States would voice opposition and raise fears that the rights included in the Convention might be interpreted as self-determination and therefore imply a right to secede. To indigenous representatives however, the term was the obvious
14. Cited in DOCIP (Indigenous Peoples Centre For Documentation) Report of Proceedings of WGIP, P34.
expression of who they were, and a simple recognition of their humanness.
Those fundamentally different realities eventually led to a States' driven compromise in ILO 169 that was to resurface in the work on the UN Draft Declaration. For the final Convention included an addition to the text that read "The use of the term 'peoples' in this convention shall not be construed as having any implications as regards the rights which may attach to the term under international law". 15
States also demanded that the record of the proceedings leading to the fmal
convention should include the following clarification:
"It is understood by
the committee that the use of the term 'peoples' in this Convention has no
implication as regards the right to
self determination as understood in
international law". 16
The strange result in textual terms was that the term "peoples" in the International Labour Organisation Convention had no real meaning in international law. That was a paradox that States parties were comfortable with because it preserved the abstraction and the limiting reality of who could be self determining to those they had already decided were appropriate in terms of blue water colonies. However many Indigenous Peoples have been more than discomforted by it because the meaninglessness of the phrase is a reaffirmation of the essential meaninglessness of their status in an international law context.
Unfortunately both the tension and the same sort of Statist arguments have persisted right through to the 1999 meeting of the ISWG, and they surface every time that the right of self determination has been raised.
THE RIGHT OF SELF DETERMINATION:
Most commentators now regard the right of self-determination as a foundational right even in international law. Anaya notes that "self determination is widely acknowledged to be a principle of customary international law and even jus cogens, a peremptory norm, (and) notwithstanding rhetorical extremism or aversion to express invocation of the term self determination, the concept underlying the term entails a certain nexus of widely shared values". 17
It is a right now embedded in many international documents and discourse. Indeed it is the definition of the right in the Human Rights Covenants such as the International Covenant on Civil and Political Rights that was adopted by indigenous representatives and inserted into the Draft Declaration as Article Three:
"Indigenous 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".
To Indigenous Peoples it is an expression of their complete humanness acknowledged in law, a reaffirmation of something that has for too long been denied. To States it is a right that they had given a specific meaning and was therefore a norm restricted in its application and intent. In their eyes it has no place in the Declaration. If it remains it must be clearly defined and hedged with restrictions.
That basic difference has largely shaped the drafting process and can only be understood, and therefore hopefully resolved, if the text of the Declaration is read in the context of the same colonising framework that has always shaped the relations between international law and Indigenous Peoples. For the same perceptions and assumptions that have underpinned the legal and ideological justifications for the dispossession of Indigenous Peoples are those which now abstract the notion of indigenous rights within the Draft declaration. They provide
17. Anaya, S James, supra, P75.
States with the mechanisms to oppose the full inclusion of the right of self-determination in the Draft, and they effectively reaffirm that we are somehow less human. For if the right is a human right that inheres in peoples because of their humanity, then the attempts that States make to deny or limit the application of Article Three is to impose the same assumptions of human worthlessness that colonisation has always done. That is the fact behind the face of most States at the UN Working Group, including New Zealand.
THE INDIGENOUS APPROACH:
The Indigenous Peoples who have attended the Working Groups represent millions of peoples throughout the world. They bring backgrounds in rich and diverse cultures as well as different life experiences and languages. However they share the common experience of colonisation and the imposition of a foreign power and culture in their lands. Amidst a shared reverence for the mother earth and a recognition of the interrelatedness of all things, it is that shared oppression which most drives their approach to the Declaration. For that reason there has always been absolute agreement on the paramountcy of Article Three. The right of self-determination is the recognition of our complete humanness from which all other rights flow. Without it we are incomplete and the Declaration loses its meaning.
Over the years literally hundreds of indigenous representatives have reaffirmed its fundamental nature. In 1992 the Shawnee jurist Glenn Morris stated:
"Self determination is the heart of the draft. It is recognised in the International Human Rights Covenants as vesting in peoples, yet many States act as though there is still an exclusive self-determination club from which millions of peoples can be excluded. Once they enter through the self determination club's doors they slam the doors closed and change the entrance rules, denying the rights that they possess as peoples to those they have locked outside. We are the ones you have shut out, and we simply and quietly say as our ancestors have done for centuries that we are peoples too. You cannot deny or restrict our right to self determination without
denying or restricting our right to be human".18
18. Intervention on Behalf of the American Indian Movement of Colorado, 21 July,
1992, P2.
The 1993 Joint Statement from the entire indigenous caucus stated:
"Self determination is the critical and essential element of the draft Declaration. Discussion on the right of self-determination has been and still is the sine qua non condition of our participation. It must therefore be
expressed clearly, explicitly and without proviso". 19
The 1995 Joint Statement read:
"The right of self determination is a precondition for the exercise of all other rights and to delimit it. . . is in effect to delimit all our rights". 20
In the same year the Navajo Nation reminded States that:
"In accordance with Article 1 of the International Covenant on Civil and Political Rights.. .all peoples have the right of self determination.. .The only question can be whether or not Indigenous Peoples are peoples. In the view of the Navajo Nation the answer must be yes. Indigenous Peoples are indeed peoples with the same right of self determination as other peoples". 21
Willie Littlechild of the Canadian Cree reaffirmed its fundamental nature at the 1996 ISWG:
"I ask for the co-operation of governments to go past the outmoded colonial relationship and acknowledge that recognising self determination is the key to doing so. I seek trust, but Indigenous Peoples have paid a price in
trusting the goodwill of States." 22
In 1996 the Mapuche delegation said:
"There can be no debate about self determination. If you deny it to us you are denying that we are peoples. How in God's law, let alone international
law, can you do that?" 23
In interventions that are often eloquent, frustrated, or hurt, Indigenous Peoples have continued to argue the humanness of the right rather than its abstraction. They have continued to try and deconstruct the colonising context within which most States still seem determined to articulate the right.
THE STRATEGIES OF STATES:
States involved in the drafting of the Declaration have adopted a number of strategies to seek either the removal of the right to self-determination or a revised wording which will restrict its import.
The most obvious strategy was to simply replace the word "peoples" with some other term such as "populations" or the singular "people". Both would render Article Three meaningless because of the international vesting of the right in the plural "peoples". The fact that States have nevertheless regularly proposed this approach has been frustrating for Indigenous Peoples. The suggested dropping of the letter "s" has been particularly tiresome because although it has seemed such a petty and semantic issue it is clearly one that has profound implications. In fact its seriousness led to an unprecedented protest on the floor of the Assembly in Geneva in 1991 when most of the indigenous delegates arrived at WGIP wearing T-shirts bearing a new kind of designer label "Don't forget the S".
Another State strategy has been to draw on the precedents of ILO Convention 169 and argue that the word "peoples" in the Draft has "no implication as regards the right to self determination as understood in international law". This approach seems to be gaining support among
23. Cited in "Report on the Second Session Of the ISWG," Nga Kaiwhakamarama I
Nga Ture, December 1996, P5.
some South American and European governments, and was advocated at one point by New Zealand.
A third strategy, which the New Zealand government now appears to favour, is based on some scholarly work that advocates a dichotomy of "internal" and "external" self-determination. At one level it recognises that Indigenous Peoples might have a right to determine some matters such as health care within a State, while the State retains the right to control all external affairs. It is a division of the exercise of the right within the construct and authority of the State, with the internal aspect often referred to as indigenous autonomy. At another level it views the right itself as having two distinctive domains. The first has to do with matters that are internal to a people (such as a right of political participation) and the second has to do exclusively with a people's status vis-avis other peoples (such as freedom from alien rule). 24
In a statement to the ISWG in 1998 the New Zealand government framed its response to Article 3 by linking it to the current Treaty jurisprudence. It acknowledged that the "question of self determination is central to the draft Declaration" and noted that "Many of New Zealand's laws and policies, especially where these relate to the partnership enshrined in the Treaty of Waitangi, are already consistent with principles found elsewhere in the Draft. The New Zealand approach to Article 3 reflects those developments. On this basis.. .New Zealand supports the right of Indigenous Peoples to exist as a community with their own cultural identity, and to be involved in determining their own economic and social destiny". 25
Briefing Papers prepared by the Crown in 1999 reaffirmed this approach. The Crown repeated its support for Indigenous Peoples' right to "exist as a community" and specifically acknowledged the Treaty as the "founding document of the nation state of New Zealand". 26
However it was more specific in the limitations that it thought should be applied to Article Three.
It rejected any idea that internal self-determination might mean "self government" or "autonomy" and said instead "The government could accept reference.. .for example to a form of responsibility closer to self management in meaning. . .The term used needs to be one which is consistent with and does not extend beyond New Zealand's situation.. .With regard to political participation, any such rights would have to be established within the the overall constitutional system and be subject to Parliamentary sovereignty". 27
This statement marked a refinement in New Zealand's approach that is still trapped within the context of colonisation. As it does with the concept of tino rangatiratanga in its Treaty jurisprudence it clearly sees the right of self-determination for Maori as something akin to an aboriginal right. It needs to be recognised (and is in fact a "burden" on its sovereignty) but it is nevertheless a subordinate right. It restricts for example the recognition in Article 3 of the right of peoples to determine their "political status" to something subordinate to the Crown's authority and thus denies the fundamental exercise of power that inheres in self-detennination. In fact what the Crown appears to be suggesting is a form of Maori self-determination which it will determine.
The Briefing Paper also noted that governments at the UN have never been willing to accept an "unqualified" right to self-determination largely because it implies a right to secede from an existing State. It argues that the right to secede is always "counterbalanced by the principle of territorial integrity... Consequently.. . if the term `self-determination' is to be used in the declaration it will either have to be qualified or explained". 28 Clearly the colonial protector will do the "explaining" on behalf of the child-like Maori.
THE CONFLICT OF REALITY:
All of the strategies used by the States are based upon the old colonising right to define Indigenous Peoples that was assumed by Europe as part of the mad rush to the "New World" after 1492. They maintain a new age illusion of respect for indigenous rights yet insist that the "reality" of international law dictates that they should determine what they are. If they profess to have difficulties with something like the right of self-determination they explain it in terms of counterbalancing rights and seek a reasonable compromise that will grant it to Indigenous Peoples with the appropriate normative safeguards. They never admit to the colonising constructs that guide their perceptions. Instead they find reasons to limit the Declaration's reach with arguments which assert that a particular article conflicts either with an existing and oxymoronic "domestic treaty" or the fiscal restraints of the State's current economic ideology. Like David Wilkins's perception of "law as magic" they cloak their stubborn resistance in an illusion of logic. Andrew Grey summed up their resistance in 1994 by observing that "A cynic might remark that States must think that treaties are never between sovereign parties but are just like a used car contract. He might also remark that perhaps one day the right to be free from torture or the right to be protected against genocide might also only be indigenous rights if they don't impose fiscal restraints on a State" 29
In effect the attempts to limit the right of self-determination simply reflect Ani Mikaere' s view that colonisation is our present. For in the end States site their arguments in a political "reality" that simply will not tolerate any notion of self determination unless it is on their terms. But reality is a changing human construct, and the fact that there are now more independent member States within the UN than there were twenty years ago is testimony to that fact. The challenge for Indigenous Peoples within the drafting process is to constantly affirm a reality that does not see rights as unique to colonising systems or as definable only by them. Taking that stance is not an act just to safeguard abstractions within the draft text but to strengthen an indigenous sense of reality. It is an assertion that the right to self-determination necessarily includes
29. Cited in "Report of the Last Session of WGIP," Nga Kaiwhakamarama I Nga
Ture, August, 1994, P26.
the right to give meaning to one's sense of what reality is. In that view, the State's persistent proclamation of "the reality is" as something that they control is in fact a denial of the indigenous spirit. It is a rejection of the full humanness of Indigenous Peoples that has always marked the colonising face.
CHANGING THE FACE:
After more than a decade of involvement Maori withdrew from the drafting of the Declaration. The decision was an extremely difficult one, and it was made by the delegation in Geneva only after consultation with people at home. It was not necessarily intended to be permanent but was prompted by an increasing level of frustration over the process and the difficulty Indigenous Peoples were experiencing in changing the colonising face. The specific catalyst, which also led to a walkout of all indigenous delegates, was a rejection by States of an earlier joint resolution tabled before the Working Group that the text was a minimum set of standards which should not be amended. The resolution included Article Three, and the continued attempts by States to seek substantive amendment or rejection was seen as yet another attempt by them to consign us to a subordinate status.
In its final intervention the Maori delegation referred to the earlier unsuccessful attempts of our people to travel to the League of Nations at a time when there was "no Maori voice in this place but one day it would be ready to hear us". It went on to note that the joint resolutions reflected the indigenous belief that "the Declaration must remain in its present form," and that the States' particular determination to amend Article Three indicated that "at this time the structures and processes of this Working Group. . . endanger the text as a whole.. . it seems that this session has still not been prepared to adequately hear our voice". 3° The consequent withdrawal was not necessarily intended to be permanent but was rather a recognition that "In any process of discussion or negotiation, parties can reserve the right to withdraw in order-4o consider further responses, to take advice, or simply to ease
30. Intervention at the Second Session of the IS WG, November, 1996.
frustrations. To do so is to be self determining." 31 Indeed it was done in the hope that one day States might hear our voice and acknowledge the reality of what self-determination actually is.
In the intervening years the process has dragged on in Geneva, and States still attempt to find ways of restricting Article Three. Indeed when Maori delegations returned in 1998 and 1999 as observers there was an even greater sense of frustration that has led to further indigenous withdrawals. 32 Yet the process will continue there and elsewhere because Indigenous Peoples will continue to proclaim their right as humans to be self-determining. Indeed there are now a range of regional documents including the Mataatua Declaration in which Indigenous Peoples exercise their right to self determination to declare that that is what they are.
In doing so they know however that changing the face behind the law of colonisation will take time. They therefore work to clarify the meaning of the right as a "humanity right", and to dispel the certainties that colonisation has created about our place and our worth. They struggle particularly with the State argument that the right implies a right to secede that could lead to the break-up of existing States.
The assumption of secession as a corollary of self-determination is one that is clearly sourced in the narrow confines of the post-war decolonisation project. It is the view of many Indigenous Peoples that that process was itself flawed because of the distinction between peoples in blue water and settler colonies, and that to now promote the sanctity of territorial integrity is simply to cling to the injustice of that distinction. However they also argue that the right excised from the decolonisation context need not necessarily imply secession in terms of the territorial break-up of a polity. In that argument self determination is returned to its status as a "humanity right" that sanctifies human interests rather than physical borders. It reaffirms that Indigenous Peoples are rather more interested in jurisdictional than territorial authority, and that in the end the earth mother is indivisible.
3 I . Supra.
32. DOCIP Report of Proceedings, 1999 JSWG, P9.
In the New Zealand context the recognition of an unqualified right would require the formation of a different Maori polity that necessarily questions the legitimacy of the colonising one and requires something more than "self management" or even "autonomy" within the existing constitutional framework. However that is not secession so much as it is reclaiming what was illegitimately taken. For the recognition of a Maori constitutional and legal framework does not seek the dismemberment of the polity of the Crown (is not "secessionist") but rather seeks a rejection of the Crown's assumption of superiority that led to the subordination of ours. It recognises that the current Treaty assumption that Maori consented to an inferior place is simply based on the colonising belief in our lesser worth rather than our own political and cultural realities in 1840.
There is no place for such an assumption in a truly post-colonial world, and Maori are willing to negotiate the necessary process of constitutional change that will remove it. The Crown has to acknowledge our right of self-determination to do so.
That will not only require a change of face on the Crown's part but a continued willingness on the part of our people to be as bold and imaginative in maintaining the right of self determination as other Indigenous Peoples have been. We can take hope in that struggle from the fact that our tipuna did not leave us a legacy of timidity, nor did they expect that we would forever be subordinate in our own land. Instead they expected that our right would find its place alongside that of others that the Treaty envisaged. Since that is the bequest they left to us we must always ask how we can make it real for our mokopuna so that they never have to doubt their complete humanness. That means seeing the goal of self determination as part of the ongoing need to question the assumptions upon which law and indeed the institutions ofthis country are constructed.
One of my tipuna wrote in 1893 that "the waves which first brought us to Aotearoa were an often turbulent but necessary path to a new life". The work undertaken by our people to proclaim the right of self-determination at the United Nations and elsewhere has been part of that new life, turbulent but necessary. It is but one way of changing the colonisers' face, one way of reclaiming our humanity.
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