1

“IN UNDRIPS AND UN DRABS”

A Critical Look at New Zealand’s Implementation of Māori Self-Determination after the
United Nations Declaration on the Rights of Indigenous Peoples

Hierophantic Human
2522216
LAWPUBL749
Indigenous Persons: Law and Policy
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TABLE OF CONTENTS
ABSTRACT...............3

INTRODUCTION...............4

PART I: THE RIGHT TO SELF-DETERMINATION OF INDIGENOUS PEOPLES

UNDER THE UNITED NATIONS LEGISLATIVE FRAMEWORK...............6

PART II: NEW ZEALAND’S IMPLEMENTATION OF THE INDIGENOUS RIGHT TO

SELF-DETERMINATION AFTER ITS ENDORSEMENT OF UNDRIP...............18

PART III: THE HE PUAPUA REPORT AND ITS RANGATIRATANGA-CENTRIC

APPROACH AS A PROPOSED REFORM OF AND THE POST-UNDRIP ROADMAP
FOR THE FULL REALIZATION OF MAORI SELF-DETERMINATION..............34

PART IV: CONCLUSION...............51

PART V: BIBLIOGRAPHY...............54
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ABSTRACT

Dribs and drabs is lateral or idiomatic, meaning, miniscule amounts that come or

happen over a period of time, not drips and drabs - albeit the latter is nonetheless logical

and axiomatic.

It is a defining characteristic of settler colonies after declarative statements supportive

of international instruments when faced with the effective implementation of

concomitant commitments that strike at the heart of core concerns and critical issues of

or relating to race relations and rights recognition.

The right to self-determination of indigenous Māori in New Zealand and the substantive

incorporation of the United Nations Declaration on the Rights of Indigenous Peoples

into municipal legislation are no exception.

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INTRODUCTION

In 2019, a working group as an independent body, was tasked with devising an

operational plan and engagement process strategy delineating how New Zealand could

better realize its respective commitments under the United Nations Declaration on the

Rights of Indigenous Peoples (hereinafter “UNDRIP”)1 and the Treaty of Waitangi (Te

Tiriti o Waitangi)2.

The resultant report, He Puapua3, considered the high road map for the reification of

Vision 2040, designated the year 2040 as the harvest-time for full implementation of its

strategic goals and stated objectives4. The report was publically released in April 2021

under the Official Information Act5, by its esteemed authors, the Declaration Working

Group: Technical Working Group on a Plan for the UN Declaration on the Rights of

Indigenous Peoples (Te Puni Kōkiri6 in Māori language) (hereinafter “the Declaration

Working Group”) on behalf of the Ministry of Māori Development.

No sooner was the cat out of the bag, were New Zealand politicians at loggerheads.

Judith Collins, Leader of the Opposition, berated the ruling Labour Party for misleading

1 United Nations Declaration on the Rights of Indigenous Peoples A/RES/61/295 (2007).

2 The Treaty of Waitangi is a historic treaty first signed on 6 February 1840 by representatives of the
British Crown and Māori chiefs (rangatira) from the North Island of New Zealand.
3 Te Puni Kōkiri (Ministry of Māori Development) He Puapua (14 October 2020).
4 Leonie Hayden “He Puapua: The Indigenous peoples report that caused a NZ political ruckus” (4 May

2021) The Spinoff <www.thespinoff.co.nz>.

5 Official Information Act 1982. The Official Information Act, New Zealand's primary freedom of

information legislation and an integral component of its constitutional framework, is a statute of the New
Zealand Parliament creating a public right of access to information held by government bodies.
6 Te Puni Kōkiri (TPK), in Māori language(te reo) meaning “a group moving forward together” is the

Ministry of Māori Development, the public service department tasked with advising the ruling
government on policies, issues and concerns impacting the Māori community at large.
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the common people down a “dangerous path on race relations” with a “divisive” “racist

separation and segregation” policy which created in esse two “separate systems of

governance” by stealth7. Jacinda Ardern, the incumbent prime minister, responded in

kind that Māori self-determination was not something “to be afraid of”, and that

persisting inequities made evident, patent for all to see, the traditional consultation

approach had “not worked”8.

This thesis paper takes a critical look at New Zealand’s implementation of Māori self-

determination after its empathic endorsement of UNDRIP. Part one of the paper

investigates and evaluates the multidefinitional right to self-realization as presented

under the United Nations legislative framework. Part two of the paper investigates the

challenges the New Zealand Government faces in implementing its UNDRIP

commitments, and evaluates whether the accomplishments it claims are indicative of

real and concrete steps taken towards, or are rather suggestive of rights-ritualism (or

cherry-picking) with regard to, indigenous Māori self-determination. Part three of the

paper investigates and analyzes Vision 2040 as a decadeslong roadmap and proposed

reform adopting a distinctive Māori self-determination or rangatiratanga-centric

approach for the full implementation of New Zealand’s UNDRIP commitments.

7 RNZ “Judith Collins: Government plans may lead to Māori systems for education, justice” New Zealand
Herald (online ed, 1 May 2021) <www.nzherald.co.nz>.
8 Michael Neilson “He Puapua: Draft Cabinet paper revealed over Māori self-determination report” New

Zealand Herald (online ed, 4 May 2021) <www.nzherald.co.nz>.

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PART I: THE RIGHT TO SELF-DETERMINATION OF

INDIGENOUS PEOPLES UNDER THE UNITED NATIONS

LEGISLATIVE FRAMEWORK

The United Nations (UN), an intergovernmental organization comprising 193 Member

States, was founded in 1954. Its warp and woof is premised on the purposes and

principles set forth in its founding Charter9. The Charter of the United Nations

(hereinafter “the UN Charter”) is the foundational treaty of the United Nations and

establishes the overall framework for the UN system of things. The opening chapter of

the UN Charter identifies the right to self-determination of peoples as one of the integral

purposes of the United Nations10.

Self-determination, put simply, represents the absolute legal right people have to

determine their own destiny without external interference or political subjugation. As

state-like peoples made subject to colonization, the principles of equity and equality

demand indigenous persons to be entitled to self-determination 11. Self-determination is

a fundamental principle in international law and codified under many a convention and

protocol. The United Nations has issued several declarations relating to self-

determination; albeit adopted an ambiguous stance on the matter, sometimes

9 United Nations “About Us” United Nations <www.un.org>.

10 Charter of the United Nations 1945. Art 1: “The Purposes of the United Nations are...to develop friendly
relations among nations based on respect for the principle of equal rights and self-determination of
peoples, and to take other appropriate measures to strengthen universal peace.”
11 James Anaya Indigenous Peoples in International Law (Oxford University Press, Oxford, 1996) at 75–

76.
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emphasising the self-determination of indigenous people, and other times the territorial

integrity of sovereign states12.

The Declaration on Principles of International Law concerning Friendly Relations and

Co-operation among States in accordance with the Charter of the United Nations 13,

adopted by the General Assembly on 24 October 1970, remains arguably one of the most

authoritative and comprehensive formulations thus far on the principle of self-

determination.

The resolution declares that the subjection of peoples to foreign subjugation,

domination and exploitation constitutes a major hindrance in the furtherance of

international peace and security; that the principle of equal rights and self-

determination of peoples constitutes a significant contribution to contemporary

international law; and that its effective application is of utmost importance for the

development of amicable relations between member states, pursuant to the principle of

sovereign equality1415.

12 Ed Brown “The United Nations, Self-Determination, State Failure and Secession” (May 29 2020) E-
International Relations <www.e-ir.info>.
13 Declaration on Principles of International Law concerning Friendly Relations and Co-operation

among States in accordance with the Charter of the United Nations A/RES/2625(XXV) (1970),
preamble.
14 At preamble.
15 States are qualified as equal simply on account of their status as states under international law

notwithstanding any asymmetries of inequality, such as military power, geographical variables,

population demographics or economic development. Further, the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States in accordance with
the Charter of the United Nations, above n 13, preamble: “All States enjoy sovereign equality. They have
equal rights and duties and are equal members of the international community, notwithstanding
differences of an economic, social, political or other nature. In particular, sovereign equality includes the
following elements: States are judicially equal; Each State enjoys the rights inherent in full sovereignty;
Each State has the duty to respect the personality of other States; The territorial integrity and political
independence of the State are inviolable; Each State has the right freely to choose and develop its political,
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In relation to the principle of equal rights and self-determination of peoples, the

resolution observes that “the principle of equal rights and self-determination of peoples

enshrined” in the UN Charter upholds the right of any and all peoples to “determine,

without external interference, their political status and to pursue their economic, social

and cultural development”16. Further, it imposes a positive duty on member states to

promote, jointly or severally, the “realization of the principle of equal rights and self-

determination of peoples in accordance with the provisions of the Charter” 17.

The resolution describes the different modes of implementing self-determination as “the

establishment of a sovereign and independent State, the free association or integration

with an independent State, or the emergence into any other political status freely

determined by a people”, therefore stressing the adopted means of reaching such a

decision as more important than its end result 18.

The conceptual ambiguity derived from multiple definitions of self-determination is

inevitably bound to result in a war of ideas, if not a clash of civilizations, for example,

where one particular group, such as indigenous persons, come to believe they are

endowed with a natural right to full independence, whilst another group, such a settler

social, economic and cultural systems; Each State has the duty to comply fully and in good faith with its
international obligations and to live in peace with other States.”
16 Declaration on Principles of International Law concerning Friendly Relations and Co-operation

among States in accordance with the Charter of the United Nations, above n 13, at preamble.
17 At preamble.
18 At preamble.
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state, acknowledges such a legal right but to a qualified degree of autonomy or

representation, falling short of secession 1920.

In any event, the historic resolution imposes a positive “duty on member states to

refrain from any forcible action which deprives peoples of their right to self-

determination, freedom and independence” 21.

The contemporary international community recognizes the need for separate and

distinct measures to protect the rights of indigenous people (also referred to as First

people, Aboriginal people, Native people, or autochthonous people) and to maintain

their unique cultures and ways of life 22.

UNDRIP, now considered the most comprehensive international instrument on the

rights of indigenous people, identifies and defines the individual and collective rights of

indigenous peoples, inclusive of but not exclusive to, their ownership rights to cultural

and ceremonial expression, identity, language, employment, health, education, and

other issues.23 The stated goal of the declaration is to encourage member countries to

19 Brown, above n 12.

20 Reflecting on the innumerable shapes and adaptable forms self-determination and self-government can
manifest, Allen Edward Buchanan, Professor of Philosophy, observed, “[I]t is extraordinarily unhelpful to
talk about “the” right to self-determination (or autonomy). Yet existing international law contains
dangerously ambiguous references to “the right of self-determination of peoples”. Allen Buchanan Justice
Legitimacy and Self-Determination: Moral Foundations for International Law (Oxford University Press,
New York, 2004) at 333.
21 Declaration on Principles of International Law concerning Friendly Relations and Co-operation

among States in accordance with the Charter of the United Nations, above n 13, at preamble.
22 United Nations “Indigenous Peoples at the United Nations” United Nations <www.un.org>.
23 “The Declaration is the most comprehensive statement of the rights of indigenous peoples ever

developed, giving prominence to collective rights to a degree unprecedented in international human rights
law. The adoption of this instrument is the clearest indication yet that the international community is
committing itself to the protection of the individual and collective rights of indigenous peoples.” United
Nations “Indigenous Peoples at the United Nations” United Nations <www.un.org>.
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collaborate with indigenous peoples in resolving global issues and concerns, such as

development, multicultural democracy, and decentralization 24.

This landmark declaration, in esse the first instrument to recognize the right of

indigenous peoples as a demographic group within the national population of a

particular state to self-determination by virtue of which they can freely determine their

political status and freely pursue their own economic, social and cultural development,

is no mean feat under international law nor a trifling matter in the course of human

events25. It remains the only international instrument to view human rights through an

indigenous lens26.

The Declaration is structured as a United Nations resolution, comprising 23 preambular

clauses and 46 articles. Guided by the purposes and principles of the UN Charter, and

the good faith assumed by its member states, UNDRIP affirms, amongst other things,

that indigenous peoples are equal to all other peoples and contribute to the diversity and

richness of the common heritage of humankind; expresses concern that indigenous

people have suffered from historic injustices as a result of, amongst other things, the

colonization and dispossession of their lands, territories and resources, thus preventing

them from exercising their right to development in accordance with their own needs and

24 United Nations Permanent Forum on Indigenous Issues “Frequently Asked Questions – Declaration on
the Rights of Indigenous Peoples” (15 January 2012) United Nations <www.un.org>.
25 Noteworthily, although the predominant view is that UNDRIP is grounded in the particular historical

circumstances of indigenous peoples (Compare Patrick Macklem The Sovereignty of Human Rights
(Oxford, UK: Oxford University Press, 2015), given that indigenous rights in UNDRIP are a subset of
human rights therefore originating in natural law, divine codes or human reason (Compare Anaya, above
n 11), it is reasonably arguable that UNDRIP's rights are universally applicable to include other minority
demographic groups beyond indigenous peoples.
26 James Anaya International Human Rights and Indigenous Peoples (Aspen Publishers, New York,

2009) at 63.
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interests; and affirms the fundamental important of the right to self-determination of all

peoples, by virtue of which they freely determine their political status and freely pursue

their own economic, social and cultural development 27.

Articles 1 to 8 and articles 33 to 34 of UNDRIP deal with the rights to self-determination

of indigenous individuals and peoples.

Article 1 declares that indigenous peoples have the right to the full enjoyment, as a

collective or as individuals, of all human rights and fundamental freedoms as recognized

in the UN Charter, the Universal Declaration of Human Rights 28 and international

human rights law.29

Article 2 declares that indigenous peoples and individuals are free and equal to all other

peoples and individuals and have the right to be free from any kind of discrimination, in

the exercise of their rights, in particular that based on their indigenous origin or

identity30.

27 United Nations Declaration on the Rights of Indigenous Peoples, above n 1, annex.

28 Universal Declaration of Human Rights (1945). The Universal Declaration of Human Rights (UDHR) is
a milestone international document in the history of human rights, adopted by the United Nations
General Assembly in 1948 (General Assembly resolution 217 A), that enshrines the rights and freedoms of
all human beings. Although non-legally binding, according to some legal commentators it has become
binding as a part of customary international law due to its core contents having been elaborated upon and
duly incorporated into subsequent international treaties and regional human rights instruments. Further,
its 524 translations make it reputedly the most translated document in human history.
29 United Nations Declaration on the Rights of Indigenous Peoples, above n 1, Art 1: “Indigenous peoples

have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental
freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights4
and international human rights law.”
30Art 2: “Indigenous peoples and individuals are free and equal to all other peoples and individuals and

have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that
based on their indigenous origin or identity.”
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Article 3 declares that indigenous peoples have the right to self-determination; and by

virtue of that right they freely determine their own political status and freely pursue

their economic, social and cultural development 31.

While Article 3 does not prescribe any limitations for its application nor refers to

territorial integrity, the right of indigenous peoples to self-determination remains

subabsolute, in so far as, Article 46 delimits self-determination to be exercised with

respect to the territorial integrity or political unity of sovereign and independent

states32.

The right to self-determination represented in Article 3, this writer concurs, is the

mainspring of UNDRIP in its express concern that indigenous peoples exercise

autonomy in their respective lives33. This is intricately connected to the rights of

indigenous peoples to self-government over internal affairs and to maintain and

strengthen their respective institutions represented in Articles 4 and 5.

31Art 3: “Indigenous peoples have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural development.”
32 Art 46: “1. Nothing in this Declaration may be interpreted as implying for any State, people, group or

person any right to engage in any activity or to perform any act contrary to the Charter of the United
Nations or construed as authorizing or encouraging any action which would dismember or impair, totally
or in part, the territorial integrity or political unity of sovereign and independent States. 2. In the exercise
of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall
be respected. The exercise of the rights set forth in this Declaration shall be subject only to such
limitations as are determined by law and in accordance with international human rights obligations. Any
such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and for meeting the just and most
compelling requirements of a democratic society. 3. The provisions set forth in this Declaration shall be
interpreted in accordance with the principles of justice, democracy, respect for human rights, equality,
non-discrimination, good governance and good faith.”
33 James Anaya Indigenous Peoples in International Law (2nd ed, Oxford University Press, New York,

2004) at 97.
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Article 4 declares that indigenous peoples, in exercising their right to self-

determination, have the right to autonomy or self-government in matters relating to

their internal and local affairs, as well as ways and means for financing their

autonomous functions34.

Article 5 declares that indigenous peoples have the right to maintain and strengthen

their distinct political, legal, economic, social and cultural institutions, while retaining

their right to participate fully, if they so choose, in the political, economic, social and

cultural life of the parent state35.

Article 6 declares that every indigenous individual has the right to a nationality 36.

Article 7 declares that indigenous individuals have the rights to life, physical and mental

integrity, liberty and security of person. Further, it declares indigenous peoples have the

collective right to live in freedom, peace and security as distinct peoples and should not

be subjected to any act of genocide or any other act of violence, including forcibly

removing children of the group to another group 37.

34 United Nations Declaration on the Rights of Indigenous Peoples, above n 1, Art 4: “Indigenous peoples,
in exercising their right to self-determination, have the right to autonomy or self-government in matters
relating to their internal and local affairs, as well as ways and means for financing their autonomous
functions.”
35 Art 5: “Indigenous peoples have the right to maintain and strengthen their distinct political, legal,

economic, social and cultural institutions, while retaining their right to participate fully, if they so choose,
in the political, economic, social and cultural life of the State.”
36 Art 6: “Every indigenous individual has the right to a nationality.”
37 Art 7: “1. Indigenous individuals have the rights to life, physical and mental integrity, liberty and

security of person. 2. Indigenous peoples have the collective right to live in freedom, peace and security as
distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including
forcibly removing children of the group to another group.”
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Article 8 declares that indigenous peoples and individuals have the right not to be

subjected to forced assimilation or destruction of their culture. Further, it declares that

member states shall provide effective mechanisms for prevention of, and redress for: (a)

any action which has the aim or effect of depriving them of their integrity as distinct

peoples, or of their cultural values or ethnic identities; (b) any action which has the aim

or effect of dispossessing them of their lands, territories or resources; (c) any form of

forced population transfer which has the aim or effect of violating or undermining any

of their rights; (d) any form of forced assimilation or integration; or (e) any form of

propaganda designed to promote or incite racial or ethnic discrimination directed

against them38.

Article 33 declares that indigenous peoples have the right to determine their own

identity or membership in accordance with their customs and traditions without

impairing the right of indigenous individuals to obtain citizenship of the states in which

they live. Further, it declares that indigenous peoples have the right to determine the

structures and to select the membership of their institutions in accordance with their

own procedures39.

38 Art 8: “1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or
destruction of their culture. 2. States shall provide effective mechanisms for prevention of, and redress
for: (a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of
their cultural values or ethnic identities; (b) Any action which has the aim or effect of dispossessing them
of their lands, territories or resources; (c) Any form of forced population transfer which has the aim or
effect of violating or undermining any of their rights; (d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against
them.”
39 Art 33: “1. Indigenous peoples have the right to determine their own identity or membership in

accordance with their customs and traditions. This does not impair the right of indigenous individuals to
obtain citizenship of the States in which they live. 2. Indigenous peoples have the right to determine the
structures and to select the membership of their institutions in accordance with their own procedures.”
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Article 34 declares that indigenous peoples have the right to promote, develop and

maintain their institutional structures and their distinctive customs, spirituality,

traditions, procedures, practices and, in the cases where they exist, juridical systems or

customs, in accordance with international human rights standards 40.

Self-determination is a fundamental human right, historically and systematically denied

indigenous peoples, that UNDRIP recognizes and contextualizes with respect to its

particular characteristics and historical circumstances 41. For example, where an

indigenous population has been forcefully subjugated and violently dispossessed of land

and resources, UNDRIP seeks to restore equilibrium through a more external form of

self-determination, whereas where a less intrusive interference or cultural assimilation

has eventuated, a more internal form may be more applicable and appropriate 42.

FM (Jock) Brookfield, law professor, while acknowledging an extant, internal right of

self-determination for indigenous peoples, queries whether self-determination extends

to an external, right of secession from the parent state even at the cost of national

sovereignty and political unity43 as related in Article 46 of UNDRIP.

To the contrary, James Anaya, law professor and former Special Rapporteur on the

rights of indigenous peoples, in perceiving self-determination as a fundamental human

40 Art 34: “Indigenous peoples have the right to promote, develop and maintain their institutional
structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases
where they exist, juridical systems or customs, in accordance with international human rights standards.”
41 Anaya, above n 26, at 63.
42 Valmaine Toki “Māori seeking self-determination or Tino Rangatiratanga? A note” (2017) 5 Journal of

Māori and Indigenous Issues 134 at 135.

43 FM (Jock) Brookfield Waitangi & Indigenous Rights (2nd ed, Auckland University Press, Auckland,

2006) at 77.
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right that requires a proportionate remedy where breached, reasons that if the alleged

breach is sufficiently extreme in nature and devastating in consequence, external self-

determination, even unto cessation, may be remedially more appropriate, however rare

an outcome44.

He concedes:

“… for most peoples, especially in light of cross-cultural diverse identities, full

self-determination, in a real sense, does not justify a separate state and may even

be impeded by a separate state. It is a rare case in the post-colonial world in

which self-determination, understood from a human rights perspective, will

require secession or the dismemberment of states.”45

Further, he argues, that although external self-determination is not often the sought-

after objective of indigenous peoples, it nevertheless represents a symbolic rhetoric in

embracing the game-changing ideology of indigenous sovereignty 46.

Interestingly, on 13 September 2007, when UNDRIP was adopted by a majority vote in

favour by the United Nations, four countries - Australia, Canada, New Zealand and the

United States – voted against it (only to later reverse their original positions).

44 Anaya, above n 33, at 98.

45 At 98.
46 Anaya, above n 36, at 63.
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Notably, these four countries represent settler colonies. Settler colonialism, a

duplicitous form of colonialism seeking to supplant the indigenous population of the

colonized territory with a new society of foreign settlers, is based on exogenous

domination typically imposed by an imperial authority 47.

The racial dictatorship inherent in settler colonialism is evidenced by the fact that the

colonizing authority generally portrays the settler population as racially superior to the

indigenous population. Settler colonies are therefore characterised by and promote

doctrines, policies and practices, “advocating superiority of peoples or individuals on the

basis of national origin or racial, religious, ethnic or cultural differences” that UNDRIP

affirms are “racist, scientifically false, legally invalid, morally condemnable and socially

unjust”48.

This may be a major explanatory factor, or so this writer opines, why more than a

decade after UNDRIP was formally adopted, the settler colonial countries of Australia,

Canada, New Zealand and the United States - having initially opposed the Declaration,

being well-aware of their own chequered colonial pasts and subpar human rights

records, and becoming tacitly apprehensive of the almost apocalyptic prospect of their

respective indigenous populations taking external self-determinative actions that

demand secessionist remedial outcomes - have been equally slow, if not laboured, in

their implementation of their commitments under the Declaration.

47 Tate LeFevre “Settler Colonialism” (26 September 2018) Oxford Biographies

<www.oxfordbibliographies.com>.
48 United Nations Declaration on the Rights of Indigenous Peoples, above n 1, at annex.
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PART II: NEW ZEALAND’S IMPLEMENTATION OF THE

INDIGENOUS RIGHT TO SELF-DETERMINATION AFTER ITS

ENDORSEMENT OF UNDRIP

When in 2007, the United Nations General Assembly voted in favour of UNDRIP, New

Zealand voted against it. New Zealand voiced concern about the deliberative process

undertaken without further negotiation in the finalization of the declarative text 49.

Having now adopted and endorsed UNDRIP50, New Zealand has embarked on the

critical phase of fully implementing its commitments under the Declaration.

This part of the paper investigates the challenges the New Zealand Government faces in

implementing its UNDRIP commitments, and evaluates whether the accomplishments it

claims are indicative of real and concrete steps taken towards, or are rather suggestive of

rights-ritualism (or cherry-picking) with regard to, indigenous Māori self-

determination.

Some commentators, having observed New Zealand's emphatic endorsement of

UNDRIP without a resultant golden era in the recognition and protection of indigenous

rights, now criticize the Government’s response as evidencing “rights ritualism” 51, and

draw close comparisons between its laboured response in the implementation of its

49 UNGAOR UN Doc A/61/PV.107 (13 September 2007) at 14–15.

50 (20 April 2010) 662 NZPD 10229.
51 Fleur Te Aho “Treaty Settlements, the UN Declaration and Rights Ritualism in Aotearoa New Zealand”

in Centre for International Governance Innovation UNDRIP Implementation: Comparative Approaches,

Indigenous Voices from CANZUS (10 March2020) at 42.
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Declaration commitments and its recognition of indigenous lands rights during the

Treaty of Waitangi settlement process 52.

Rights ritualism or cherry-picking is the performative appearance of supporting a rights

framework contemporaneous with active resistance to its actual implementation 53.

Hilary Charlesworth, law professor, describes rights ritualism as a behavioural response

by a state actor towards rights regimes which permits state actors under the umbrella of

rights support to evade close scrutiny and critical evaluation:

“[r]ights ritualism can be understood as a way of embracing the language of

human rights precisely to deflect real human rights scrutiny and to avoid

accountability for human rights abuses.” 54

She reprimands state actors as often showcasing their ratification of international

human rights treaties without subsequent implementation through substantive

legislation on the national level corresponding to the affirmed rights 55.

Rights ritualism remains difficult to detect as its salient feature is the formal appearance

of a feigned commitment to stated goals contained in a given rights frameworks

52 At 44.
53 Hilary Charlesworth “Swimming to Cambodia: Justice and Ritual in Human Rights After Conflict”
(Kirby Lecture in International Law) (2010) 29 Austl YBIL 1 at 12–13.
54 At 12.
55 At 12.
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contemporaneous with their substantive abandonment 56. As a result, it is important that

a sovereign state such as New Zealand, having endorsed a declaration like UNDRIP, be

held to account for approaches and practices in domestic implementation which for all

intents and purposes amounts to rights ritualism.

Legal claims and negotiated settlements under the Treaty of Waitangi, the foundational

historical document framing the political relations between indigenous Māori and the

New Zealand government, are now a notable feature of New Zealand race relations and

rights recognition since the passing of the Treaty of Waitangi Act in 1975 57. The Act

established the Waitangi Tribunal as a permanent commission of inquiry to address

Māori grievances against the New Zealand government.

The resultant Treaty of Waitangi settlement process is internationally renowned as a

celebrated example of indigenous rights recognition 58 and the New Zealand

government has not been shy to bask in the limelight of such high praise. For example,

in 2011, even before the 4th session of the Expert Mechanism on the Rights of

Indigenous Peoples (EMRIP) (a body of independent experts established by the United

Nation's main human rights body, the Human Rights Council, to conduct studies to

advance the promotion and protection of indigenous people's rights), New Zealand

declared: “There are four key areas of work within the New Zealand Government that

56Te Aho, above n 51, at 44.

57Treaty of Waitangi Act 1975.
58 James Anaya Report of the Special Rapporteur on the Rights of Indigenous peoples UN Doc

A/HRC/18/35/Add.4 (31 May 2011) at 2.

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illustrate our engagement with the Declaration. Those are: Treaty settlements; social

services; constitutional issues; and Māori participation in decision making.” 59

Again, in 2014, at the first World Conference on Indigenous Peoples, marketed as an

opportunity for shared perspectives on the best practices for realizing indigenous rights

and furthering UNDRIP’s objectives, New Zealand, in relating its view that the core

principles of UNDRIP were correlated to those of the Treaty of Waitangi, positively

feedbacked that “operating in the spirit of partnership” 60 had resulted in landmark

shared governance arrangements during the treaty settlement process 6162.

Evidently, in recent years, the blossoming partnership alluded to between the ruling

government and indigenous peoples has flowered into treaty settlements that recognize

the legal personality of a number of taonga (treasured things) with shared Crown-Māori

co-governance and co-management entities established to represent them.

59 Expert Mechanism Report On Its Fourth Session IV A/HRC/18/43 (19 August 2011). New Zealand,
Statement on Item 5 — UN Declaration on the Rights of Indigenous People, online:
<http://cendoc.docip.org/collect/cendocdo/index/assoc/HASHfe82/69fbdc90.dir/EM11newzealand157.
pdf>.
60 (20 April 2010) 662 NZPD 10229. Simon Power: “The Declaration contains principles that are

consistent with the duties and principles inherent in the Treaty, such as operating in the spirit of
partnership and mutual respect. We affirm this objective, and affirm the Government’s commitment to
build and maintain constructive relationships with Māori to achieve better results for Māori, which will
benefit New Zealand as a whole. The Declaration is an historic achievement: the result of many years of
discussions—22 years in fact—and of hard work and perseverance by many people. I acknowledge the long
involvement of Māori in the elaboration of the Declaration and the extent of their investment in its
development.”
61 Minister of Māori Affairs Pita Sharples, Statement to the World Conference on Indigenous Peoples —

Roundtable 2: Implementation of the Rights of Indigenous Peoples at the National and Local Level (22
September 2014), online: < https://www.mfat.govt.nz/br/media-and-resources/statement-to-the-world-
conference-on-indigenous-peoples-roundtable-2-implementation-of-the-rights-of-indigenous-peoples-at-
the-national-and-local-level/>
62 Te Aho, above n 51, at 44.
 22

The celebrated shared governance agreements demonstrate a palpable implementation

of New Zealand’s UNDRIP commitments, and are reflective of Article 8, amongst others,

which declares that indigenous Māori have the right not to be subjected to forced

assimilation or destruction of their culture, and exhorts the New Zealand government to

provide effective mechanisms for prevention of and redress for historical actions aimed

at depriving Māori of their integrity as distinct peoples, cultural values and ethnic

identities, lands, territories and resources, such as occurred during the New Zealand

land confiscations of the 1860s pursuant to the New Zealand Settlements Act 63.

For example, the former Te Urewera national park, now a protected area, became the

world's first natural resource to be given its own legal identity, replete with the rights,

duties and liabilities of a legal person, through the Te Urewera Act 64, which purposed to

establish and preserve in perpetuity a legal identity and protected status for Te Urewera,

in acknowledgment of its intrinsic worth, distinctive natural and cultural values, the

integrity of those values, and its national importance 65.

Further, the Whanganui River, now accorded special status, became the world's second

natural resource to be given its own legal identity, replete with the rights, duties and

liabilities of a legal person, through the Te Awa Tupua (Whanganui River Claims

63 New Zealand Settlements Act 1863.

64 Te Urewera Act 2014. Section 11: “Te Urewera is a legal entity, and has all the rights, powers, duties,
and liabilities of a legal person.”
65 Section 4.
 23

Settlement) Act66 (hereinafter “the Te Awa Tupua Act”), bringing to an end the longest-

running litigation in New Zealand history67.

An outstanding feature of monumental importance often overlooked in the Te Awa

Tupua Act is the adoption of an indigenous Māori worldview on the environment. This

is reflected in the recognition of the Whanganui River as a living and indivisible being.

Section 12 of Act declares: “Te Awa Tupua is an indivisible and living whole, comprising

the Whanganui River from the mountains to the sea, incorporating all its physical and

metaphysical elements”68.

While indigenous peoples make advantageous use of natural resources, the indigenous

perspective of the natural world differs significantly69. This legislative innovation - the

result of decadeslong consultation and litigation between the Whanganui Māori tribe

and the New Zealand government 70 - accurately portrays the ecocentric perspective

underscoring the tikanga (customary practices) of the Māori people, that is, a nature-

66 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. Section 14: “Te Awa Tupua is a legal
person and has all the rights, powers, duties, and liabilities of a legal person.”
67 Isaac Davison “Whanganui River given legal status of a person under unique Treaty of Waitangi

settlement” New Zealand Herald (online ed, 15 March 2017) <www.nzherald.co.nz>.

68 Te Awa Tupua (Whanganui River Claims Settlement) Act, s 12.
69 Rodolfo Stavenhagen Report of the Special Rapporteur on the Situation of Human Rights and

Fundamental Freedoms of Indigenous People UN Doc A/59/258 (12 August 2004) at 6-7: “From time
immemorial indigenous peoples have maintained a special relationship with the land, their source of
livelihood and sustenance and the basis of their very existence as communities. The right to own, occupy
and use land is inherent in the self-conception of indigenous peoples and generally it is in the local
community, the tribe, the indigenous nation or group that this right is vested. For economically
productive purposes this land may be divided into plots and used individually or on a family basis, yet
much of it is regularly restricted for community use only(forests, pastures, fisheries, and so on), and the
social and moral ownership belongs to the community. This has often been recognized in the national
legal system, but just as often certain kinds of economic interests have attempted to turn communal
possession into individual private ownership, a process which began during the colonial period in many
countries and intensified during post-colonial times.”
70 Office of Treaty Settlements Agreement re. Whanganui River Claims (Tūtohu Whakatupua) (30

August 2012), online: https://www.govt.nz/assets/Documents/OTS/Whanganui-Iwi/Whanganui-Iwi-

Agreement-re-Whanganui-River-claims-Tutohu-Whakatupua-30-Aug-2012.pdf.
 24

centred as opposed to human-centred (anthropocentric) system of values that

emphasizes the inherent (intrinsic) value in all of nature.

The Te Awa Tupua Act therefore reflects the unique interrelationship existing between

indigenous peoples and the natural world and incorporates the holistic worldview that is

indispensible to the true and proper exercise of their right to self-determination.

The Whanganui Māori tribe (and indigenous Māori in general) live by the principle of

kaitiakitanga (obligation to nurture and care), holding such a deep respect for, affinity

regarding and kinship (whanaungatanga) with nature that they consider nature their

tupuna (ancestor); a cherished member of their own broader family 71.

Their indigenous Māori worldview constrains human beings from ownership rights over

natural resources72 and rather imposes a duty of care on them to respect and protect

such resources. The indigenous perspective of property, in summary, espouses that

“[n]o person “owns” or holds as “property” living things. Our Mother Earth and our

plant and animal relatives are respected sovereign living beings with rights of their own

in addition to playing an essential role in our survival.”73

71 Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims concerning New Zealand Law and Policy
Affecting Māori Culture and Identity (Wai 262, 2011) at 5 and 23.
72 At 5 and 23.
73 International Indian Treaty Council (IITC) IITC Discussion Paper on Biological Diversity and

Biological Ethics (30 August 1996) at 5, cited by Alexandra Xanthaki Indigenous Rights and United
Nations Standards: Self-Determination, Culture and Land (Cambridge University Press, Cambridge,
2007) at 209.
 25

This is in contrast to John Locke’s labour theory of property, synonymous with the

traditional Western view, according to which natural resources, being insentient objects,

are subject to “the sole and despotic dominion of humankind” 74, and become property a

human individual can own, consume or benefit from75 through the exertion of their own

labour.

Accordingly, it flows from this that western “notions of property — both “real” and

“intellectual” — have established a system whereby anything can be isolated,

decontextualized, packaged for consumption, marketed, and traded — in short

commodified”76. Contrarily, the indigenous rather emphasizes the intricate

connectedness of land, resources, culture and self-determination 77.

Notwithstanding these two normative systems standing at odds with each other, the Te

Awa Tupua Act proves these separate and distinct worldviews can be represented and

reconciled even within the same piece of legislation.

The United Nations in its Concluding Observations on the Combined Twenty-First and

Twenty-Second Periodic Reports of New Zealand celebrated the adoption of the Te Awa

Tupua Act and congratulated New Zealand for the implementation of its treaty

74 William Carey Jones (ed) Commentaries on the Laws of England by Sir William Blackstone (Bancroft-
Whitney, San Francisco, 1915) at 707.
75 Richard Cox (ed) Second Treatise of Government: An Essay Concerning the True Original Extent and

End of Civil Government by John Locke (John Willey & Sons, New Jersey, 1982) at 18.
76 Alexander Bauer “New Ways of Thinking about Cultural Property: A Critical Appraisal of the Antiquities

Trade Debates” (2008) 31(3) Fordham Int. Law J. 690 at 697.

77 Lindsey Wiersma “Indigenous Lands as Cultural Property: A New Approach to Indigenous Land

Claims” (2005) 54(4) Duke Law J. 1061 at 1063–4, 1082.

 26

obligations under the International Convention on the Elimination of All Forms of

Racial Discrimination (CERD)78.

The mere fact that the Whanganui Māori tribe actually possesses the River itself, albeit

have been denied long sought-after freshwater ownership rights, lends further credence

to the notion that the New Zealand Government is taking real and concrete steps to

implement its UNDRIP commitments, namely, Article 26 which declares that

indigenous peoples have the right to own, use, develop and control the lands, territories

and resources they possess.

Interestingly, in light of the fact that the indigenous worldview, as discussed above,

constrains human beings from ownership of natural resources, failure by the New

Zealand government to grant indigenous peoples additive ownership rights over natural

resources in and of itself need not encumber their right to self-determination nor be

suggestive of rights-ritualism on the side of the parent state.

Further, Mount Taranaki (now Taranaki Maunga79), also known as Mount Egmont, a

dormant stratovolcano confiscated from Māori by the New Zealand Government in

abovementioned New Zealand land confiscations to punish the Kingitanga movement

for instituting an alternative form of self-government, will soon become the world's

third natural resource to be given its own legal identity, replete with the rights, duties

UN Doc CERD/C/NZL/CO/21-22.
78
79On 2 December 2019, an agreement between Ngā Iwi o Taranaki (the Taranaki Māori tribe) and the
New Zealand government that the mountain was to only be referred to in Māori language as Taranaki
Maunga. The park comprising the mountain and its adjoining slopes will also be renamed from Egmont
National Park to Te Papakura o Taranaki.
 27

and liabilities of a legal person, after a record of understanding 80 was signed between

Ngā Iwi o Taranaki (the Taranaki Māori tribe) and the New Zealand government 81.

The fact remains that although the New Zealand’s settler colonists assumed the

Whanganui Māori tribe had relinquished their proprietary rights to the River 82 upon the

co-signing of the Treaty of Waitangi in 1840, the Whanganui Māori tribe has continued

to assert its proprietary claim to it since 1873 83.

Although the granting of legal personality 84 cherished natural resources transcends the

mere ‘window-dressing’ consultation during that characterized settlement processes

between the New Zealand Government and indigenous Māori before such legislative

innovations85, outstanding questions remain whether the Te Awa Tupua Act

significantly changes the Whanganui Māori tribe’s governance and management of the

River without additive proprietary rights in the freshwater river.

80 Ngā Iwi O Taranaki and the Crown Te Anga Pūtakerongo mō Ngā Maunga o Taranaki, Pouākai me
Kaitake/Record of Understanding for Mount Taranaki, Pouākai and the Kaitake Ranges (20 December
2017), online: https://www.govt.nz/assets/Documents/OTS/Taranaki-Maunga/Taranaki-Maunga-Te-
Anga-Putakerongo-Record-of-Understanding-20-December-2017.pdf.
81 Blanton Smith “Mt Taranaki to become legal personality under agreement between iwi and

government” Stuff (online ed, 21 December 2017) <www.stuff.co.nz>.

82 James DK Morris and Jacinta Ruru “Giving Voice to Rivers: Legal Personality as a Vehicle for

Recognising Indigenous Peoples’ Relationships to Water?” (2010) 14(2) Aust. Indig. Law Rev. 49 at 49.
83 Whanganui Iwi and the Crown Record of Understanding in Relation to the Whanganui River

Settlement, Whanganui Iwi–Crown (13 October 2011) at [1.7]–[1.8]: “Whanganui Iwi have consistently
maintained that they possessed and controlled the Whanganui River and all things that gave the River its
essential life and that such possession and control has never been willingly relinquished. The Whanganui
Iwi claim has been persistently maintained since the first petitions on behalf of Whanganui Iwi to
Parliament in relation to the Timber Floating Bill in 1873 and the destruction of pa tuna (eel weirs) by the
activities of steamers on the River in 1887. Numerous further petitions and other submissions followed
over the next 100 years.” Online: https://www.ngatangatatiaki.co.nz/assets/Uploads/Important-
Documents/DocumentLibrary_WhanganuiRiverROU.pdf.
84 A legal person is an entity, usually a natural person or statutory body, for example, a company, on

which a legal system confers rights and imposes duties.

85 Jacinta Ruru “Legal Indigenous Recognition Devices” (2016) 8(26) Indigenous Law Bulletin 26 at 27:

“Treaty principles are deliberately dynamic and still evolving. Some principles include the Crown’s duty of
active protection, general principles of reciprocity, and respect and commitments to engagement that go
beyond mere ‘window dressing’ consultation with Māori communities.”
 28

Under common law, given that water cannot be owned86, the Whanganui Māori tribe

retains proprietary interests in the riverbed but not in the water composing the River.

Does this present a significant legislative stumbling block to the right to self-

determination of indigenous Māori in light of the quintessential role water plays in their

life, identity, spirituality and economy 87 as taonga (a treasured thing)88? If so, is this

tantamount to rights ritualism on behalf of the New Zealand Government as it pertains

to the full implementation of its UNDRIP commitments? Then again, given that the

indigenous worldview delimits human beings from owning natural resources, does

failure to grant indigenous persons ownership rights over natural resources in and of

itself encumber their true and proper exercise of the right to self-determination?

Indubitably, the treaty settlements process has accorded greater recognition to Māori

customary law through the granting of the legal personality to taonga (treasured things)

and the establishing of shared Crown-Māori co-governance and co-management entities

to represent them, yet a searching question remains whether indigenous Māori can avail

themselves of autonomous decision-making when the New Zealand’s approach to

implementing its UNDRIP commitments remains state-centred 89.

86 Katherine Sanders “‘Beyond Human Ownership’? Property, Power and Legal Personality for Nature in
Aotearoa New Zealand” (2018) 30(2) Journal of Environmental Law 207 at 215, 226. Te Awa Tupua
(Whanganui River Claims Settlement) Act, ss 16, 46.
87 Te Awa Tupua (Whanganui River Claims Settlement) Act, s 69.
88 Waitangi Tribunal The Mohaka River Report 1992 (Wai 119, 1992) at 10–13.
89 Katherine Sanders “‘Beyond Human Ownership’? Property, Power and Legal Personality for Nature in

Aotearoa New Zealand” (2018) 30(2) J Envtl L 207 at 209.

 29

For example, the Te Awa Tupua Act establishes Te Pou Tupua 90, comprising of two

people, one acting on behalf of the government and the other the tribe, as the central

representative body of the Whanganui River (Te Awa Tupua). Decision-making under

such an arrangement therefore necessitates both representatives to reach a unanimous

agreement. Fleur Te Aho, law professor, has reached the conclusion that the Treaty

settlements process neither satisfies the rights and redress affirmed in UNDRIP nor

fulfils the guarantees tendered in the Treaty of Waitangi, but rather serve to validate a

state-dictated settlement process in further perpetuation of statist politicolegal

dominance91.

As demonstrated above, the twin pillars of historic sovereignty and self-determination,

replete with their own distinct histories and specific rationales 92, present any sovereign

state incorporating into domestic legislation their respective commitments under

international instruments such as UNDRIP with significant challenges.

Under the Constitution of New Zealand, Parliament reigns as the supreme legislative

power. The New Zealand government considers UNDRIP to be morally instructive but

not legally binding. While minded to interpret UNDRIP as far as consistent with

90 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ), ss 18–19, 64.
91Te Aho, above n 51, at 42.
92 Benedict Kingsbury “Reconciling Five Competing Conceptual Structures of Indigenous Peoples Claims

in International and Comparative Law” (2001) 34 NYU J Intl Law & Pol 189 at 189: “This article seeks to
clarify the debate by distinguishing and exploring five fundamentally different conceptual structures
employed in claims brought by indigenous peoples or members of such groups: human rights and non-
discrimination claims; minority claims; self-determination claims; historic sovereignty claims; and
claims as indigenous peoples, including claims based on treaties or other agreements between indigenous
peoples and states.”
 30

domestic legislation, it deems the Declaration has “no impact on New Zealand law and

no impact on the constitutional framework”93.

UNDRIP appears to provide two visions for and versions of self-determination: internal

and external. The distinguishing feature between internal and external self-

determination is that the former operates within the existing parent state’s legislative

framework94. Internal self-determination, therefore, represents the right for indigenous

persons to freely choose if they so desire their own political and economic regime within

a statist setting95.

Internal self-determination is facilitated for in Articles 4, 46, 5, 17 and 18 of UNDRIP.

Read together whole they enable indigenous peoples to realize self-government over

their own internal and local affairs without undermining the territorial integrity and

political unity of the sovereign state, through maintaining and strengthening their

distinct political, legal, economic, social and cultural institutions whilst preserving their

right to participate fully, if they so choose, in the political, economic, social and cultural

life of such a state.

The Māori King Movement, Kīngitanga in Māori language, a movement instituted by a

confederacy of Māori tribes in New Zealand during the 1850s to counteract tribal land
93 (20 April 2010) 662 NZPD 10238.
94 Kiri Toki “What a difference a DRIP Makes; the Implications of Officially Endorsing the United Nations
Declaration on the Rights of Indigenous Peoples” (2010) 16 Auckland U L Rev 243 at 253: “The key
distinction is that internal self-determination operates within the existing legal framework of the state. It
will not provide an “external” right of self-determination, or secession. It is thus of no surprise that many
states prefer this interpretation, and expressly advocated for the term “self-determination” to be replaced
with “self-management” to reflect this intention.”
95 Antonio Cassese Self-Determination of Peoples: A Legal Reappraisalby (Cambridge University Press,

Cambridge, 1995) at 101.

 31

alienation and parliamentary exclusion that purported to fulfil an representational role

similar in political status to that of the British monarchy, is a notable historical example

of internal self-determination exercised by an indigenous peoples.

Further, the tricameral system “consisting of an Iwi/Hapū assembly (the

rangatiratanga sphere), the Crown in Parliament (the kāwanatanga sphere) and a

joint deliberative body (the relational sphere)”, put forward in a landmark 2016 report 96

by Matike Mai Aotearoa (the Independent Working Group on Constitutional

Transformation) whom consulted Māori nationwide in traditional assemblies between

2012 and 2015 to discuss a new form of constitutionalism needing not to fit the

prevailing Westminster parliamentary system97, is perhaps the best example in more

recent times of internal self-determination involving indigenous peoples.

The Declaration Working Group, drawing from the inspiration and aspiration of this

tricameral system proposed in the Matike Mai Aotearoa report98, and adopting a

distinctive Māori self-determination or rangatiratanga-centric approach,

communicated their hope the that He Puapua report would culminate in a

breakthrough where the Constitution of New Zealand, the uncodified sum of laws and

96 Matike Mai Aotearoa (The Independent Working Group on Constitutional Transformation) He

Whakaaro Here Whakaumu Mo Aotearoa: The Report of Matike Mai Aotearoa (January 2016) at 10.
97 At 7: “The Terms of Reference did not ask the Working Group to consider such questions as “How might

the Treaty fit within the current Westminster constitutional system” but rather required it to seek advice
on a different type of constitutionalism that is based upon He Whakaputanga and Te Tiriti. For that
reason this Report uses the term “constitutional transformation” rather than “constitutional change”.”
98 Te Puni Kōkiri (Ministry of Māori Development), above n 3, at 9.
 32

principles determining the political governance of the New Zealand, would become

rooted in both the Treaty of Waitangi and UNDRIP 99.

The group’s vision mirrors Prime Minister Jacinda Ardern’s recent candid admission

that the traditional consultation in light of persisting inequities between Māori and non-

Māori, has put simply, “not worked”100. “He puapua”, in Māori language meaning “a

break”, that is, a break in the waves, refers to the “breaking of the usual political and

societal norms and approaches’’ 101.

The formation of the Declaration Working Group and its resultant report, in reality a

draft cabinet paper, not official government policy, demonstrates New Zealand’s

realization the positive duty imposed on it as a United Nation member state to promote,

jointly or severally, the realization of the principle of equal rights and self-determination

of peoples in accordance with the provisions of the UN Charter and UNDRIP.

Any proposed reforms on such a major scale, as suggested the respective Matike Mai

Aotearoa and Declaration Working Group reports, would necessitate the negotiation

and renegotiation of jurisdictional matters, formal decision-making processes and other

procedural issues such as group membership, fund allocation and voting rights, that

strike that fine balance and delicate equilibrium between the recognition and

representation of both Māori and non-Māori interests, for example, both the Māori right

99 At 2.
100 Michael Neilson, above n 8.
101 Jo Moir “He Puapua - the report dividing Parliament” Newsroom (11 May 2017)
<www.newsroom.co.nz>.
 33

to self-determination occasioned by their historic deprivation, as well as the non-Māori

prescriptive rights attributable to their factual coexistence, in New Zealand.

 34

PART III: THE HE PUAPUA REPORT AND ITS

RANGATIRATANGA-CENTRIC APPROACH AS A PROPOSED

REFORM OF AND THE POST-UNDRIP ROADMAP FOR THE

FULL REALIZATION OF MAORI SELF-DETERMATION

The He Puapua report, the declared first step towards the creation of a definitive

UNDRIP plan to be further progressed through the New Zealand government’s

engagement and partnership with indigenous Māori102, is principled upon the New

Zealand government's priorities of national well-being, inclusive economy and collective

pride, the adoption of a Māori self-determination or rangatiratanga-centric approach,

and the Declaration Working Group's understanding of the Treaty of Waitangi as New

Zealand's constitutional foundation and central to the realisation of UNDRIP 103.

This part of the paper discusses and evaluates Vision 2040, a detailed decadeslong

roadmap adopting a distinctive Māori self-determination or rangatiratanga-centric

approach for the full implementation of New Zealand’s UNDRIP commitments,

proposed by the Declaration Working Group in its landmark report.

Full implementation of indigenous rights and norms at international law necessitates

their subsequent incorporation into domestic, non-indigenous, state-dominant, post-

102 Te Puni Kōkiri (Ministry of Māori Development), above n 3, at 7.

103 At 3-4.
 35

colonial legal systems like New Zealand’s, which more often than not, are antagonistic to

their recognition and protection.104

John Burrows, a leading authority on Canadian Indigenous law and constitutional law,

echoes this grave concern as it relates to indigenous peoples and treaty interpretations:

“New Zealand and Canada’s origin stories are unconvincing. They preach a false

religion. They promulgate faulty philosophical lines of reasoning. As such, they should

be rejected. Invalidation not only requires rejecting particular interpretive doctrines

related to treaty interpretation. Retraction also necessitates the quashing of a priori

propositions which imply that the Crown-dominated law is supreme.” 105

The Declaration Working Group, while noting New Zealand’s commendable progress

towards UNDRIP’s realisation through facilitating for Māori participation in state

governance, cautioned that considerably more must needs be achieved in the realisation

of Māori self-determination (rangatiratanga Māori), which it understood to mean

Māori control over Māori destinies106.

A Māori self-determination or rangatiratanga-centric approach therefore, the

Declaration Working Group concluded, most aptly reflected the central pillar of

104 Claire Charters “The UN Declaration on the Rights of Indigenous Peoples in New Zealand - A Case for
Cautious Optimism” in Centre for International Governance Innovation UNDRIP Implementation:
Comparative Approaches, Indigenous Voices from CANZUS (10 March 2020) at 60.
105 John Borrows, “Origin stories and the law: Treaty metaphysics in Canada and New Zealand” in Mark

Hickford and Carwyn Jones (eds) Indigenous Peoples and the State: International Perspectives on the
Treaty of Waitangi (Oxford, Routledge (UK), 2019) 30 at 33, cited by Claire Charters “The UN
Declaration on the Rights of Indigenous Peoples in New Zealand - A Case for Cautious Optimism” in
Centre for International Governance Innovation UNDRIP Implementation: Comparative Approaches,
Indigenous Voices from CANZUS (10 March 2020) at 60.
106 Te Puni Kōkiri (Ministry of Māori Development), above n 3, at 4, 6.
 36

UNDRIP from which all other rights flow107, not the prevailing state-centred one, in that

it enables indigenous Māori to enjoy more autonomous decision-making in the true and

proper exercise of their right to self-determination. All this, at an auspicious time, when

New Zealand has reached the requisite maturity as reflected in existing government

initiatives, laws and policy, the voices of Māori and jurisprudence, favourable for the

restructuring of governance in a manner conducive to the realization of Māori self-

determination108.

The rangatiratanga-centric approach vindicates UNDRIP’s point of distinction as only

international instrument to view human rights through an indigenous lens, as reflected

in Article 34 which enshrines the right of indigenous people, in this case the Māori, to

promote, develop and maintain their institutional structures and their distinctive

customs, spirituality, traditions, procedures, practices and, in the cases where extant,

juridical systems or customs, in accordance with international human rights standards.

To exemplify, the Declaration Working Group elucidated that ultimately the meaning of

self-determination and how it is exercised is the sole prerogative of indigenous peoples

to determine, ranging from full independence (suggestive of external self-

determination) at one end of the spectrum, to participation in state government at the

other (suggestive of internal self-determination) 109.

107 At 6.
108 At 6.
109 At 6.
 37

This elucidation encapsulates the principle of equal rights and self-determination of

indigenous peoples, enshrined in the UN Charter upholding the right of peoples to

determine, without external interference, their political status and to pursue their

economic, social and cultural development, as declared in the preamble of The

Declaration on Principles of International Law concerning Friendly Relations and Co-

operation among States in accordance with the Charter of the United Nations. It also

acknowledges the different modes of implementing self-determination as recognized at

international law and reflected in the United Nations legislative framework.

The Declaration Working Group’s vision is that by the year 2040, being the bicentennial

anniversary of the signing of the Treaty of Waitangi, Māori self-determination will be

palpably realized with indigenous peoples and the state government sharing a

constructive and collaborative relationship in spirit and truth 110.

The report sets out the five key components underlying Vision 2040: Māori self-

determination; participation in state governance; land, territories and resources;

culture; and equity111.

In relation to Māori self-determination, the report declares that by the year 2040:

indigenous Māori will be exercising authority over Māori matters as agreed by Māori

reflecting exclusive and/or shared jurisdiction over their lands, territories and resources

and over matters to do with taonga tuki iho (treasured things) and culture; indigenous

110 At 7.
111 At 7.
 38

Māori tribes and subtribes would have agreed upon and established their governance

structures with their authority recognized; and Māori customary law will be functioning

and applicable across New Zealand under Māori (national, tribal, subtribal,

familial),and also where appropriate, governmental authorities 112.

These proposed measures as it relates to Māori self-determination are reflected in

Article 5 of UNDRIP which declares that indigenous peoples, in this case Māori, have

the right to maintain and strengthen their distinct political, legal, economic, social and

cultural institutions, while retaining their right to participate fully, if they so choose, in

the political, economic, social and cultural life of the parent state.

In relation to Māori participation in state governance, the report declares that by the

year 2040: Māori participation in central and local government will be strong and

secure; indigenous Māori will have a meaningful, even dominant voice, in resource

management decisions; the state governance sphere will bear a bicultural character;

there will be strong protection for the Treaty of Waitangi and human rights in state law

and policy; and indigenous Māori will be providing for indigenous Māori 113.

In relation to land, territories and resources, the report declares that by the year 2040:

New Zealand as a whole will know and appreciate Māori tribal boundaries where Māori

governance is evident; there will be an enlarged tribal, subtribal and familial estate

supported by significantly increased return of confiscated coastal and marine areas

112 At 7–8.
113 At 8.
 39

lands and waters, including marine and coastal areas, to Māori ownership (in addition

to Treaty of Waitangi settlements); law, policy and processes will support flourishing

Māori tribal territories wherein Māori tribal/subtribal/familial can positively contribute

towards the control of, access to, and management of all lands and resources within

their territories and boundaries, in accordance with Māori customary law and

knowledge; there will be greater relinquishment of state-assumed exclusive governance

authority over lands, resources and taonga (treasured things); and law, policy,

processes and entities will support a successful bicultural joint sphere of governance and

management of resources, taonga (treasured things) and government-owned lands 114.

These proposed measures as it relates to Māori land, territories and resources, which

the Declaration Working Group stress are additional to the Treaty settlement process

and legislative outcomes discussed above in the previous part, are reflected in Article 8

of UNDRIP which declares that indigenous peoples and individuals, in this case Māori,

have the right not to be subjected to forced assimilation or destruction of their culture,

and further that states, in this case New Zealand, should provide effective mechanisms

for prevention of, and redress for any past actions aimed at dispossessing them of their

lands, territories or resources.

In relation to Māori culture, the report declares that by the year 2040: indigenous Māori

tribes, subtribes and families will be exercising authority over all aspects of their culture

and natural heritage; that the Māori language will be flourishing with its use widespread

and integrity protected; all Māori will have opportunity to access, practise and develop

114 At 7.
 40

their culture and language, connected with their genealogy and confident in their

indigenous identity; and all New Zealanders will embrace and respect Māori culture as

an integral part of national identity which will be reflected in a bicultural, Māori

knowledge-informed state service115.

In relation to Māori and equity, the report declares that by the year 2040: New Zealand

will be a nation wherein indigenous Māori will be thriving and prosperous in all aspects

of life, including cross-generationally; there will be equity between peoples to the end

that Māori self-determination and Māori authority is recognised and respected; there

will be genuine partnership bodies in the relational sphere; all Māori will enjoy equity in

opportunity and outcomes; and New Zealand's understanding of wellbeing will

incorporate a holistic Māori worldview and Māori knowledge perspective 116.

These proposed measures as it relates to Māori and equity are reflective of the principles

of equity and equality that, James Anaya emphasizes, demand indigenous persons be

entitled to self-determination as state-like peoples subjected to colonization 117. They also

reflect the Treaty of Waitangi guarantees documented its Article 3, namely, equality

between Māori and non- Māori, to be further discussed below.

The Treaty of Waitangi model for the year 2040 adopted by the Declaration Working

Group presents two overlapping circles representing three well-balanced intersecting

115 At 7.
116 At 7.
117 Anaya, above n 11, at 63.
 41

‘spheres of authority’: rangatiratanga, kawanatanga and joint118. The rangatiratanga

sphere represents Māori governance over people and places; the kawanatanga sphere

represents government governance; and the overlapping 'joint sphere' represents Māori

and government shared governance relating to issues of mutual concern 119.

The equipoised ‘spheres of authority’ presented in the proposed model, in addition to

the Declaration Working Group’s proposed measures relating to Māori and equity

discussed above, are exemplary of UNDRIP’s proclamation in Article 2 that indigenous

peoples and individuals, in this case Māori, are free and equal to all other peoples and

individuals and have the right to be free from any kind of discrimination, in the exercise

of their rights, in particular that based on their indigenous origin or cultural identity, as

well as the right of indigenous peoples, in this case Māori, to self-government over

internal affairs and to maintain and strengthen their respective institutions as reflected

in Articles 4 and 5.

Under the proposed model, indigenous Māori can choose to participate in government

governance pursuant to Article 3 of the Treaty of Waitangi which confirms Māori equity

and equality120. Article 3 of the Treaty of Waitangi states:

“In consideration thereof Her Majesty the Queen of England extends to the Natives of

New Zealand Her royal protection and imparts to them all the Rights and Privileges of

British Subjects.121”

118 Te Puni Kōkiri (Ministry of Māori Development), above n 3, at 8.

119 At 8.
120 At 8.
 42

Given the unequal power dynamics that tend to typify relations and interactions

between indigenous peoples and sovereign states, the autonomous decision-making

required for indigenous peoples to truly and properly exercise their right to self-

determination is obviously susceptible to significant compromise. In light of this fact, it

is commendable that the Declaration Working Group stressed the factual existence of

opportune room for legislative improvement in the government governance sphere in

relation to indigenous Māori as a vulnerable minority group faced with disproportionate

socioeconomic disparities122.

The Declaration Working Group proposes an illustrative roadmap featuring incremental

step-changes which facilitate for greater operation of Māori self-determination or

rangatiratanga, to be further developed into a Declaration plan, in order to bring the

currently lopsided “spheres of authority” into a state of equilibrium over the next two

decades123. It proposed an ideal relational sphere adopting a joint governance structure

possibly requiring a specially-instituted Treaty of Waitangi body or court to regulate

jurisdictional boundaries, not dissimilar to the shared jurisdictional arrangements

based upon modern treaties and self-government agreements being currently

implemented between First Nations peoples and the Canadian state 124.

In relation to engagement with Māori people, the Declaration Working Group suggested

a phased approach comprising an initial targeted engagement with key Māori groups

121 Treaty of Waitangi 1840, art 3.

122 Te Puni Kōkiri (Ministry of Māori Development), above n 3, at 8.
123 At 9-10.
124 At 10.
 43

and organizations, followed by wider and more open engagement, finally culminating in

targeted thematic engagement aligned with the five key components of Vision 2040

(Māori determination; participation in state governance; land, territories and resources;

culture; and equity) discussed above.

Further, it emphasised the need for ongoing, iterative engagements between indigenous

Māori and the state government, especially in Māori self-determination building and

design phases125. Even further, it stressed the need for public engagement and a strong

public education campaign necessary to reach Vision 2040 126.

The Minister of Māori Development Willie Jackson, confirming the importance of public

engagement as spotlighted in the report, stated: “We want the public buying into this,

this is about what we are going to do in terms of the country, the future, what's the

partnership like? What are indigenous rights about? So there's so much to do. It's not

about just circulating a document...We have to be responsible, we will be responsible

and every New Zealander will get a say in this.” 127

The Declaration Working Group proposed a roadmap to Declaration consistency for the

time period between 2019 and 2040 across their five abovementioned key components

to be effectuated as multiple simultaneous initiatives that go to the substance of

UNDRIP and engagement128. It posits as its starting point the importance of the New

125 At 10.
126 At 11.
127 RNZ “He Puapua report: Māori Development Minister wants public buy-in” (5 May 2021) RNZ

<www.rnz.co.nz>.
128 Te Puni Kōkiri (Ministry of Māori Development), above n 3, at 11.
 44

Zealand government sincerely fully and fulfilling its respective Treaty of Waitangi duties

and responsibilities129.

To this end, it is commendable that the Office for Māori-Crown Relation (Te Arawhiti in

Māori language), a departmental agency, was founded in 2019, to enable and support

both Māori and the New Zealand government to “act reasonably, honourably and in

good faith towards each other as Treaty partners”130. “Te Arawhiti”, meaning ‘the

bridge’ in Māori language, symbolises the bridge between indigenous Māori and the

New Zealand government, both past and future, and their journey from grievance to

partnership131.

In relation to its roadmap to Declaration consistency for the time frame spanning

November 2019 to December 2020, the Declaration Working Group proposed: public

announcement of receipt of the report with an outline of next steps; the report and its

recommendations to be considered by the Cabinet of New Zealand with decisions about

how to further implement a Declaration plan; continued socialization of the Declaration

by the Declaration Working Group in their daily day work and Te Arawhiti (the Office

for Māori-Crown Relation) in the government; announcement of the government's

commitment to a Declaration plan at a significant event domestically (for example, at

Waitangi, the national day of New Zealand marking the anniversary of signing of the

Treaty of Waitangi, in February 2020) or internationally (for example, the Expert

129At 11.
130 Te Arawhiti (The Office For Māori Crown Relations) “Engagement” Te Arawhiti
<www.tearawhiti.govt.nz>.
131 Te Arawhiti (The Office For Māori Crown Relations) “Tēnā koutou katoa” Te Arawhiti

<www.tearwhiti.govt.nz>.
 45

Mechanism on Indigenous Rights in June 2020), if possible outlining immediate and

long-term goals; commencement of the first targeted phase of engagement;

establishment of a governance association and secretariat responsible for guiding

realisation of the Declaration plan into the future (including accountability process such

as monitoring, reviewing and taking remedial action); commencement of the wide and

inclusive second phase of engagement; and finalization of the Declaration plan and

strategies or implementation from 2020132.

Evaluating the proposed milestones for the November 2019 to December 2020 time

period above, the He Puapua report, although partially published in October 2020, was

fully released by the New Zealand in April 2021, under the Official Information Act, a

statute of the New Zealand Parliament that creates a public right of access to

information held by government bodies, not publically and willingly as the Declaration

Working Group had hoped. Prime Minister Jacinta Ardern recently revealed the

controversial report about Māori co-governance had not been released publically over

concerns it would be misconstrued as Government policy 133.

In expressing her disappointment over how the parliamentary debate about the report

focussed on New Zealand’s implementation of its UNDRIP commitments had panned

out, with her ruling party even accused of sneaking through separate systems for Māori,

she lamented “the groundwork for us being able to have a decent conversation about

132Te Puni Kōkiri (Ministry of Māori Development), above n 3, at 11-12.

133Jenna Lynch “He Puapua wasn't released over concern it could be misconstrued as Government policy
- Jacinda Ardern” (4 May 2021) Newshub <www.newshub.co.nz>.
 46

these issues has not been well established by the debate I've seen from members of this

House.”134

This frank confession goes against the grain of the Declaration Working Group’s own

estimation that New Zealand had attained the collective maturity necessary for the

restructuring of governance in a manner favourable to the realization of Māori self-

determination135.

Opposition leader Judith Collins, defiantly telling media reporters amidst accusations of

race-baiting136, “Quite clearly there is a plan, it is being implemented, and we are going

to call it out,”137 further suggests contemporary New Zealand society still retains a

frictious, even fractious, sociopolitical fabric, able to preclude constructive discussion,

much less parliamentary debate, on critical issues involving bicultural race relations and

indigenous rights recognition.

The report and its recommendations, is still yet to be considered by Cabinet of New

Zealand138, the governmental body of senior ministers accountable to the New Zealand

Parliament, at its weekly meetings held to discuss pivotal issues and formulate

government policy, in order to reach those important decisions on how to further

implement an UNDRIP plan, the Declaration Working Group is hoping for.

134 Jenna Lynch, above n 133.

135 Te Puni Kōkiri (Ministry of Māori Development), above n 3, at 6.
136 Rachel Sadler “Judith Collins' recent supposed race-baiting ‘is racist’, should be called out - political

commentator” (18 May 2021) Newshub <www.newshub.co.nz>.

137 Jenna Lynch, above n 133.
138 Jenna Lynch, above n 133.
 47

Although most of the proposed milestones outlined in the Declaration Working Group’s

roadmap for the November 2019 to December 2020 time frame remain unachieved, the

ongoing global pandemic of coronavirus disease (COVID-19) is a major mitigating factor

to be given serious consideration to when analyzing and evaluating New Zealand’s

implementation of its UNDRIP commitments in more recent times. The widespread

social and economic disruption attributable to the global novel coronavirus pandemic so

soon after the report was completed has undoubtedly set back the achievement goals

aspired for by the Declaration Working Group during its first earmarked time frame 139.

For example, the 13th session of the Expert Mechanism on the Rights of Indigenous

Peoples, mentioned by the Declaration Working Group as an international opportunity

to publish the report, initially scheduled to take place from 8 to 12 June 2020, was

postponed to take place from 30 November to 4 December 2020 due to the COVID-19

outbreak. Nevertheless, at the Asia and Pacific regional meeting, this self-same

Declaration Working Group, referring to the right to self-determination of indigenous

peoples, declared on its own motion: “New Zealand is committed to developing a

Declaration plan. We want this process to reflect the partnership between the

Government and Māori, focus on supporting the wellbeing of indigenous populations

and present a clear path towards the realisation of their self-determination.” 140

139 RNZ, above n 127. Willie Jackson, Minister of Māori Development, referring to the delay in the further
auctioning of the “He Puapua” report, explained: “Between 2019 and 2021 we have had a general election,
we've had two or three lockdowns, a change of government, that's why things have been held up”.
140 Te Puni Kōkiri (Ministry of Māori Development) The impact of COVID-19 on the rights of indigenous

peoples under the UN Declaration on the Rights of Indigenous Peoples XIII (1 December 20202), online:
https://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/Session13.aspx.
 48

In relation to its roadmap to Declaration consistency for the time frame spanning

December 2020 to 2021, the Declaration Working Group proposed: starting the journey

towards Declaration consistency; the New Zealand government will have undertaken

engagement and established ways to ensure progress having received a reasonable

mandate from Māori around the content and direction of the work that needs to be

undertaken to achieve Declaration consistency by 2040; the New Zealand government

will have initiated additional pieces of work designed to further lay the groundwork for

Declaration consistency; and the New Zealand government will have initiated a public

education campaign to give all New Zealanders the tools to have informed discussions

about the country's constitutional arrangements and set up a process for the

Government to determine how it should partner with Māori in a Treaty of Waitangi-

based constitution141.

In relation to its roadmap to Declaration consistency for the time frame spanning

December 2021 to 2025, the Declaration Working Group proposed: continuing the

journey towards Declaration realisation; monitoring for positive progress towards

Vision 2040, identifying areas for improvement, and highlighting whether further

engagement is needed to address these areas; the New Zealand government will have

held a constitutional convention on the role of the government as a Treaty partner in a

future constitution; and the government will have continued the public education

campaign and encouraged the Human Rights Commission to partner with NGOs to

build alliances and shape the public conversation about constitutional arrangements. 142

141 Te Puni Kōkiri (Ministry of Māori Development), above n 3, at 12.

142 At 12-13.
 49

In relation to its roadmap to Declaration consistency for the time frame spanning

December 2025 to 2030, the Declaration Working Group proposed: reaching the mid-

point of New Zealand's journey to Declaration realisation; monitoring shows continued

positive progress towards Vision 2020, identifies any areas of improvement and

highlights whether further engagement is needed to address these areas; the

Government will have continued to make significant progress on the initial work

established, will have identified areas where work can be improved, and further work

will have been initiated to advance the plan; the Government will have designed and

initiated a multistage process of constitutional transformation with three-streams

reflecting different interests: the Rangatiratanga stream (for Māori), the Kawanatanga

stream (for Government) and the Rite Tahi stream (for all New Zealanders); and a

process for joint deliberation will also have been established 143.

In relation to its roadmap to Declaration consistency for the time frame spanning

December 2030 to 2035, the Declaration Working Group proposed: nearing the end of

the journey with the destination of the Declaration in sight; monitoring shows positive

progress towards Vision 2020, identifies any areas of improvement, and highlights

whether further engagement is needed to address these areas; the government will have

implemented the actions identified to achieve Declaration consistency and enabled

Māori governance and/or participation in the designs and delivery of public services;

the government will have concluded a far-reaching programme of engagement on

constitutional transformation and will have established a final constitutional convention

143 At 13.
 50

bringing together the three streams (Rangatiratanga, Kawanatanga and Rite Tahi) to

identify the instruments and processes needed to form a Treaty-based constitution 144.

In relation to its roadmap to Declaration consistency for the time frame spanning

December 2035 to 2040 the Declaration Working Group proposed: arriving at our

destination realisation the Declaration; the government will have implemented the

actions identified to achieve Declaration consistency and enabled Māori governance

and/or participation in the design and delivery of public services; and the government

will have implemented the relevant instruments to share power more fairly with Māori

in New Zealand's constitutional arrangements 145.

144 At 12.
145 At 13.
 51

PART IV: CONCLUSION

Māori self-determination represents the inherent legal right indigenous Māori have to

determine their own destiny free from external interference or political subjugation by

any colonizing power, much less the New Zealand Government, in accordance with the

principles of equity and equality146. The right to self-determination represented in

Article 3 is the mainspring of UNDRIP in its express concern that indigenous peoples

exercise autonomy in their respective lives147, being intimately connected to the rights of

indigenous peoples to self-government over internal affairs and to maintain and

strengthen their respective institutions represented in Articles 4 and 5.

Commendably, in recent years, a blossoming partnership between the ruling

government and indigenous peoples has flowered into treaty settlements that recognize

the legal personality of a number of taonga (treasured things) – for example, the Te

Urewera national park, the Whanganui River, and Taranaki Maunga - with shared

Crown-Māori co-governance and co-management entities established to represent

them. This demonstrates palpable implementation of New Zealand’s UNDRIP

commitments, crowned by the adoption of the indigenous Māori worldview and

ecocentric perspective on the environment, as exemplified in the explicit recognition of

the Whanganui River as a living and indivisible being under the Te Awa Tupua Act. The

Te Awa Tupua Act reflects the unique interrelationship existing between indigenous

146
Anaya, above n 11, at 75–76.
147 Anaya, above n 33, at 97.
 52

peoples and the natural world and incorporates the holistic worldview that is

indispensible to the true and proper exercise of their right to self-determination.

Despite legislative innovations outstanding questions remain whether tribal governance

and management of natural resources without additive proprietary rights curtails the

autonomous thinking required for the true and proper exercise of the right to self-

determination. For example, does the fact that in strict accordance with the indigenous

worldview, as this writer highlights, natural resources cannot be owned, either jointly or

severally, curtail the true and proper exercise of Māori self-determination in such a way

that is illustrative of a state-dictated settlement process perpetuating its politicolegal

dominance?148

Legal commentators like Tony Collins and Shea Esterling answer in the affirmative

when they conclude:

“The Te Awa Tupua Act...translates cultural rights but fails to translate the

property rights secured for Indigenous peoples in international human rights law,

leaving Aotearoa New Zealand wanting in its commitments under human rights

law. Within the domestic setting, this inquiry demonstrates that the Te Awa

Tupua Act, in its grant of legal personality, moves beyond mere ‘window-

dressing’ consultation with Māori — unlike previous interactions between Māori

and Pākehā in the settlement process. Although this is a step forward, it still fails

to secure rights of Māori as provided under the Treaty of Waitangi. Ultimately,

148 Te Aho, above n 51, at 42.

 53

this demonstrates the vulnerability of settlements like the Te Awa Tupua Act to

politics and the hurdles to implement concrete human rights.” 149

The Declaration Working Group, affirming Matike Mai Aotearoa's tricameral system

consisting of an Iwi/Hapū assembly (the rangatiratanga sphere), the Crown in

Parliament (the kāwanatanga sphere) and a joint deliberative body (the relational

sphere), and adopting a distinctive Māori self-determination or rangatiratanga-centric

approach for the full implementation of New Zealand’s UNDRIP commitments in its

Vision 2040 roadmap and proposed reform, now presents New Zealand with the biggest

challenge its has faced yet but also the best opportunity thus far presented for the full

realization of Māori (internal) self-determination, as reflected in Articles 3, 4, 5, 17, 18

and 46 of UNDRIP, subject only to further incorporation into its domestic legislation.

149Tony Collins and Shea Esterling “Fluid Personality: Indigenous Rights and the Te Awa Tupua
(Whanganui River Claims Settlement) Act 2017 in Aotearoa New Zealand” (2019) 20(1) Melb. J. Int'l L.
197 at 221.
 54

PART V: BIBLIOGRAPHY
A. Legislation

New Zealand Settlements Act 1863.

Treaty of Waitangi Act 1975.

Official Information Act 1982.

Te Urewera Act 2014.

Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.

B. Treaties

1 New Zealand

Treaty of Waitangi 1840.

2 United Nations

Charter of the United Nations 1945.

United Nations Declaration on the Rights of Indigenous Peoples A/RES/61/295 (2007).

Declaration on Principles of International Law concerning Friendly Relations and Co-

operation among States in accordance with the Charter of the United Nations
A/RES/2625(XXV) (1970).

Universal Declaration of Human Rights (1945).

C. Books and Chapters in Books

James Anaya Indigenous Peoples in International Law (Oxford University Press,

Oxford, 1996).

James Anaya Indigenous Peoples in International Law (2nd ed, Oxford University
Press, New York, 2004).

James Anaya International Human Rights and Indigenous Peoples (Aspen Publishers,
New York, 2009).

FM (Jock) Brookfield Waitangi & Indigenous Rights (2nd ed, Auckland University
Press, Auckland, 2006).
 55

Allen Buchanan Justice Legitimacy and Self-Determination: Moral Foundations for

International Law (Oxford University Press, New York, 2004).

Antonio Cassese Self-Determination of Peoples: A Legal Reappraisal (Cambridge

University Press, Cambridge, 1995).

Richard Cox (ed) Second Treatise of Government: An Essay Concerning the True
Original Extent and End of Civil Government by John Locke (John Willey & Sons, New
Jersey, 1982).

Mark Hickford and Carwyn Jones (eds) Indigenous Peoples and the State:
International Perspectives on the Treaty of Waitangi (Oxford, Routledge (UK), 2019).

William Carey Jones (ed) Commentaries on the Laws of England by Sir William
Blackstone (Bancroft-Whitney, San Francisco, 1915).

Patrick Macklem The Sovereignty of Human Rights (Oxford University Press, Oxford,
2015).

Alexandra Xanthaki Indigenous Rights and United Nations Standards: Self-

Determination, Culture and Land (Cambridge University Press, Cambridge, 2007).

D. Journal Articles

Alexander Bauer “New Ways of Thinking about Cultural Property: A Critical Appraisal
of the Antiquities Trade Debates” (2008) 31(3) Fordham Int. Law J. 690.

Benedict Kingsbury “Reconciling Five Competing Conceptual Structures of Indigenous

Peoples Claims in International and Comparative Law” (2001) 34 NYU J Intl Law & Pol
189.

Hilary Charlesworth “Swimming to Cambodia: Justice and Ritual in Human Rights

After Conflict” (Kirby Lecture in International Law) (2010) 29 Austl YBIL 1.

Tony Collins and Shea Esterling “Fluid Personality: Indigenous Rights and the Te Awa
Tupua (Whanganui River Claims Settlement) Act 2017 in Aotearoa New Zealand” (2019)
20(1) Melb. J. Int'l L. 197.

James DK Morris and Jacinta Ruru “Giving Voice to Rivers: Legal Personality as a
Vehicle for Recognising Indigenous Peoples’ Relationships to Water?” (2010) 14(2)
Aust. Indig. Law Rev. 49.

Jacinta Ruru “Legal Indigenous Recognition Devices” (2016) 8(26) Indigenous Law
Bulletin 26.

Katherine Sanders “‘Beyond Human Ownership’? Property, Power and Legal Personality
for Nature in Aotearoa New Zealand” (2018) 30(2) Journal of Environmental Law 207.
 56

Kiri Toki “What a difference a DRIP Makes; the Implications of Officially Endorsing the
United Nations Declaration on the Rights of Indigenous Peoples” (2010) 16 Auckland U
L Rev 243.

Valmaine Toki “Māori seeking self-determination or Tino Rangatiratanga? A note”

(2017) 5 Journal of Māori and Indigenous Issues 134.

Lindsey Wiersma “Indigenous Lands as Cultural Property: A New Approach to

Indigenous Land Claims” (2005) 54(4) Duke Law J. 1061.

E. Parliamentary and Government Materials

(20 April 2010) 662 NZPD 10229.

(20 April 2010) 662 NZPD 10238.

Ngā Iwi O Taranaki and the Crown Te Anga Pūtakerongo mō Ngā Maunga o Taranaki,
Pouākai me Kaitake/Record of Understanding for Mount Taranaki, Pouākai and the
Kaitake Ranges (20 December 2017), online:
https://www.govt.nz/assets/Documents/OTS/Taranaki-Maunga/Taranaki-Maunga-Te-
Anga-Putakerongo-Record-of-Understanding-20-December-2017.pdf.

Office of Treaty Settlements Agreement re. Whanganui River Claims (Tūtohu

Whakatupua) (30 August 2012), online:
https://www.govt.nz/assets/Documents/OTS/Whanganui-Iwi/Whanganui-Iwi-
Agreement-re-Whanganui-River-claims-Tutohu-Whakatupua-30-Aug-2012.pdf.

Whanganui Iwi and the Crown Record of Understanding in Relation to the Whanganui
River Settlement, Whanganui Iwi–Crown (13 October 2011).

F. Reports

1 New Zealand

Matike Mai Aotearoa (The Independent Working Group on Constitutional

Transformation) He Whakaaro Here Whakaumu Mo Aotearoa: The Report of Matike
Mai Aotearoa (January 2016).

Te Puni Kōkiri (Ministry of Māori Development) He Puapua (14 October 2020).

Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims concerning New Zealand
Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011).

Waitangi Tribunal The Mohaka River Report 1992 (Wai 119, 1992).

2 International
 57

Centre for International Governance Innovation UNDRIP Implementation:

Comparative Approaches, Indigenous Voices from CANZUS (10 March 2020).

3 United Nations

James Anaya Report of the Special Rapporteur on the rights of Indigenous peoples UN
Doc A/HRC/18/35/Add.4 (31 May 2011).

Rodolfo Stavenhagen Report of the Special Rapporteur on the Situation of Human

Rights and Fundamental Freedoms of Indigenous People UN Doc A/59/258 (12 August
2004).

Expert Mechanism Report On Its Fourth Session IV A/HRC/18/43 (19 August 2011).
New Zealand, Statement on Item 5 — UN Declaration on the Rights of Indigenous
People, online:
<http://cendoc.docip.org/collect/cendocdo/index/assoc/HASHfe82/69fbdc90.dir/EM
11newzealand157.pdf>.

G. Internet Resources

Ed Brown “The United Nations, Self-Determination, State Failure and Secession” (May
29 2020) E-International Relations <www.e-ir.info>.

Isaac Davison “Whanganui River given legal status of a person under unique Treaty of
Waitangi settlement” New Zealand Herald (online ed, 15 March 2017) <nzherald.co.nz>.

Jenna Lynch “He Puapua wasn't released over concern it could be misconstrued as
Government policy - Jacinda Ardern” (4 May 2021) Newshub <www.newshub.co.nz>.

Leonie Hayden “He Puapua: The Indigenous peoples report that caused a NZ political
ruckus” (4 May 2021) The Spinoff <www.thespinoff.co.nz>.

Tate LeFevre “Settler Colonialism” (26 September 2018) Oxford Biographies

<www.oxfordbibliographies.com>.

Michael Neilson “He Puapua: Draft Cabinet paper revealed over Māori self-
determination report” New Zealand Herald (online ed, 4 May 2021) <nzherald.co.nz>.

Jo Moir "He Puapua - the report dividing Parliament" Newsroom (11 May 2017)
<newsroom.co.nz>.

RNZ “Judith Collins: Government plans may lead to Māori systems for education,
justice” New Zealand Herald (online ed, 1 May 2021) <www.nzherald.co.nz>.

RNZ “He Puapua report: Māori Development Minister wants public buy-in” (5 May
2021) RNZ <www.rnz.co.nz>.
 58

Rachel Sadler “Judith Collins' recent supposed race-baiting 'is racist', should be called
out - political commentator” (18 May 2021) Newshub <www.newshub.co.nz>.

Blanton Smith “Mt Taranaki to become legal personality under agreement between iwi
and government" Stuff (online ed, 21 December 2017) <stuff.co.nz>.

Te Arawhiti (The Office For Māori Crown Relations) “Engagement” Te Arawhiti

<www.tearwhiti.govt.nz>.

Te Arawhiti (The Office For Māori Crown Relations) “Tēnā koutou katoa” Te Arawhiti
<www.tearwhiti.govt.nz>.

United Nations “About Us” United Nations <www.un.org>.

United Nations “Indigenous Peoples at the United Nations” United Nations

<www.un.org>.

United Nations Permanent Forum on Indigenous Issues “Frequently Asked Questions –

Declaration on the Rights of Indigenous Peoples” (15 January 2012) United Nations
<www.un.org>.

H. Other resources

1 United Nations

Minister of Māori Affairs Pita Sharples, Statement to the World Conference on

Indigenous Peoples — Roundtable 2: Implementation of the Rights of Indigenous
Peoples at the National and Local Level (22 September 2014), online: <
https://www.mfat.govt.nz/br/media-and-resources/statement-to-the-world-
conference-on-indigenous-peoples-roundtable-2-implementation-of-the-rights-of-
indigenous-peoples-at-the-national-and-local-level/>.

Te Puni Kōkiri (Ministry of Māori Development) The impact of COVID-19 on the rights
of indigenous peoples under the UN Declaration on the Rights of Indigenous Peoples
XIII (1 December 20202), online:
https://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/Session13.aspx.

UN Doc CERD/C/NZL/CO/21-22 (22 September 2017).

UNGAOR UN Doc A/61/PV.107 (13 September 2007).