Maori Legal Service
Aotearoa/New Zealand

5th session of the Working Group on the Draft Declaration on the Rights of Indigenous Peoples 1999

Statement by Tracey Whare, Maori Legal Service


Greetings from Aotearoa to all the respected delegates who have gathered here to work in the spirit of genuine dialogue and good will on the elaboration of the Draft Declaration for the Rights of Indigenous peoples.

May I remind you that the last Maori delegation to participate in this forum was in 1996. At this time the Maori delegation decided to withdraw from this forum because the right to participate in a way that recognize our self determination was denied. You will also recall that in the last intervention made by the Maori delegation it was stated that the future participation of Maori may occur if this forum becomes capable of adequately hearing our voice. On of the reason I am here is to see if our right to full and equal participation has been recognised in the working methods of this meeting.

I will be pleased to report back to my people the position that was taken by the New Zealand government yesterday in supporting the suggestion made by the indigenous caucus that the informal consultations  be struck from the order of work. It restores some faith in this process and provides a concrete example of the willingness and ability of at least one government to recognise the important principle of equal participation that was at stake.

In the general statement that was delivered yesterday by the Head of the New Zealand delegation, the statement was made that the New Zealand government is firmly committed to a Declaration which among other things consistent with New Zealand law. I would like to voice my disappointment and opposition to this statement. To limit a international Declaration to the domestic legal regime of any one State is in direct conflict with the purpose of international human rights standard setting and is a
contradiction of the principle of good faith. Maori are acutely aware of the pitfalls and dichotomies that exist within our current domestic legal regime. We are constantly subjected to their legal system and there are numerous reports and statistics that show that Maori are not protected within that legal regime. It is for this reason that we participate in international indigenous human right standard setting because of the lack of protection offered to us at home. Indeed if the Draft Declaration was to be limited to existing domestic legal regimes then there would be no point in participating in this meeting because it would add nothing to the rights what we supposedly enjoy in our domestic settings.

In the same way the New Zealand government stated that the Draft Declaration must be consistent with the Treaty of Waitangi. I would agree whole heartedly with this statement but for the fact that the Treaty of Waitangi has been redefined in the interests of the New Zealand government. There are two written texts of the Treaty of Waitangi, one in Maori the other in English. The overwhelming majority of chiefs signed the Maori version. Neither is a clear translation of the other. The New Zealand government has unilaterally stated that the Treaty contains "principles" which should guide the relationship between the Crown and Tribal Nations. The New Zealand government has never applied the international rule of "contra preferendum" which requieres that any international Treaty that has two interpretations should be recognised in the language of the Indigenous Peoples. I would therefore urge the New Zealand government to reconsider the limitation it has placed on the Draft Declaration and enter into the discussion in ways that they articulated yesterday that is, constructive and genuine dialogue. Let us remember the mandate of this Working Group which is to look at standard setting and the protection of the human rights of Indigenous Peoples.

The right to self determintion is well recognised as a core principle and fundamental right in international law. Examples of these can be found in international instruments, the Vienna Declaration and decisions of the International Court of Justice. Like other Indigenous brothers and sisters I would like to bring to your attention the concluding remarks of the Human Rights Committee in paragraphs 7 and 8 specifically notes that the right to self determination applies to the Aboriginal Peoples of Canada and requests the govenment of Canada to include in its next report information on the implementation of article 1 of the Covenant.

I would urge governments to take note of this report. It sends a very clear message to us all that already within the United Nations system the right of self determination for Indigenous Peoples is recognised, the work that we do here in this forum must be consistent with this.

Kia ora

Nga Kaiwhakamarama I Nga Ture (Maori Legal Service Inc.)
15 Johnston Street, Level 2, PO Box 1268, TE WHANGANUI-A-TARA
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