Click here to view original web page at news.google.com
We do not see things as they are, we see them as we are (anonymous)
Introduction
I wish to acknowledge the mana and scholarship of my colleague Prof Claire Charters and wish to thank her as one of Aotearoa’s leading Māori scholars for making the time and effort to read and comment on my recent EJIL article on progressive treaty-drafting, recognizing Māori representation on the international trade plane. Charters concludes that I did ‘not put Māori’s ongoing sovereignty at the fore’ of my analysis of Indigenous-related provisions in New Zealand’s recent free trade agreements with the European Union and the United Kingdom. I am a believer in robust academic debate and, in keeping with this Blog’s name, we need to talk: nā tō rourou, nā taku rourou ka ora ai te iwi.
People from the left and the right of the political spectrum keep reminding me that I lack ‘a deeper understanding’. New Zealand’s constitutional law is one of the most fascinating areas of law, and one of the most contested. It is characterized by strands that are incompatible. Specifically, there is a clash as to whether one puts the individual or the group at the heart of a polity. The answer to this question is foundational.
Māori Sovereignty
Charters’ argument hinges upon the Māori claim to sovereignty, which is derived from the te reo version of te Tiriti o Waitangi | the Treaty of Waitangi via an application of the interpretive principle of contra proferentem. There is a plurality of views on the Crown-Māori relationship. On the one hand, it is an interpretive question, concerning the exegesis of te Tiriti. On the other hand, it is a deeply political question, for a democracy cannot function if either the government (when referred to as ‘settler government’) or the way decisions are made (encapsulated in the slogan ‘one vote, one value’) are considered illegitimate by the populace, Indigenous or non-Indigenous. In the following, I will focus upon the legal issues.
Even on the basis of the methodology advanced by Charters, a different reading is possible. Article 2, first sentence, of te Tiriti guarantees protection of the exercise of tino rangatiratanga, translated as ‘unqualified exercise of … chieftainship’. This begs the question of what this means today. The Māori Dictionary offers several meanings, one of them being sovereignty. Others, notably autonomy and self-government, are concepts less explosive and could arguably be accommodated without threatening the unity of the state. Additionally, the same result could be achieved by recognizing tribal sovereignty, as the United States does, and then confining it to self-government; the difference is semantics.
Commentators who take a different position from Charters’ might point out that if there is more than one interpretive result after an application of contra proferentem, the result that is more harmonious with the other language version cannot be rejected out of hand. Contra proferentem does not cancel out the English text entirely. Against this backdrop, reading Māori sovereignty into te Tiriti seems more a political choice than a preordained interpretation.
Use of Siracusa Principles
As their title suggest, the Siracusa Principles were designed to guide the interpretation of ‘Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’. Their application to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) would have as a consequence an expansion of those rights.
It must be the hallmark of any democratic society to protect societal minorities and Indigenous peoples from the rule of the majority. At the same time, the decision-making process needs to be democratically legitimized for the respective governance structure to deserve the label ‘democratic’; this presupposes sufficient policy space for majoritarian rule. While Indigenous rights and minority rights are not the same, it is clear that special participatory protections for the benefit of an Indigenous people are no longer needed in a democratically organized society once the Indigenous people forms the majority: democratic processes will ensure that the (Indigenous) people’s will prevails.
Conversely, indigeneity is irrespective of population status. By the same token, there are instances where Indigenous rights will, and should, prevail over democratically legitimized majority decisions, just like minority group rights and human rights. This is particularly true in areas where the non-Indigenous majority encroaches upon the culture, land, resources, etc. of Indigenous peoples. The Siracusa Principles, which cannot override the legal text, have relevance for Indigenous rights here – in their defensive guise.
The Indigenous rights regime contemplates a continuum of rights, ranging from defensive rights to consultation rights, participatory rights, rights to say no, and finally to the exercise of public power by Indigenous peoples. The stronger Indigenous rights are conceived, the more democratic considerations come to the fore. In a nutshell, the interpretation of rights and corresponding limitations runs in parallel: the wider the scope of Indigenous rights, the more broadly limitations need to be interpreted because of the increased potential for conflict. If not, as I pointed out in my article, this would lead to a systematic prioritization of Indigenous rights over the rights of others. This parallelism of rights and limitations can also be observed in constitutional law, international economic law, and human rights law.
Imagine a situation where the government takes measures to implement human rights. The provision of public services is a case in point. The Siracusa Principles are not suited for a collision of rights situation, when equally worthwhile competing rights have to be weighed up. There is a reason why the Siracusa Principles were developed in the context of civil and political rights, that is, first-generation rights, and a separate set of interpretive principles, the so-called Limburg Principles as elaborated in the Maastricht Guidelines, apply to economic, social, and cultural rights.
Article 19 of UNDRIP
Article 19 of UNDRIP is the widest of the free, prior and informed consent (FPIC) provisions within the Declaration and functions as a fall-back should the other more specific provisions not apply. From consent requirements, consultation duties ensue for the government in order to obtain the required consent. Consultation rights are distinct from consent requirements. The former calls for good faith but not agreement. Consultation rights are, therefore, less problematic from a democratic point of view. This does not mean that FPIC could not be accommodated in a democracy. It can, as long as its application is circumscribed.
How to circumscribe it is disputed and explains why Article 19 was one of the most contested provisions during the negotiation process. Remarkably, the provision does not simply state that consent is required for legislative or administrative measures that may affect Indigenous peoples, but assumes a FPIC requirement as a given. A draft to that effect was rejected (cf. Art. 20, 2nd sentence, 1994 Draft Declaration). Additionally, it has been stipulated in the adopted version that UNDRIP shall be interpreted in accordance with, inter alia, the principle of democracy (Art. 46(3)).
Article 19 does not clarify what happens if consent is withheld. The pertinent Expert Mechanism calls this ‘a legal grey area’ (para. 28). In any event, the government may act if the measure at issue does not affect Indigenous peoples, or the measure affects Indigenous peoples but the requirements of the limitation in Article 46(2) of UNDRIP are satisfied.
That ‘affectedness’ remains undefined is the crux of the matter. The broadest reading would encompass government measures which are capable of potentially affecting Indigenous peoples indirectly. This would entail a general duty on the part of the government to consult in order to obtain FPIC, because any regulatory change may potentially affect Indigenous peoples, at least indirectly. A general participation right in favour of Indigenous peoples would be the other side of the coin. In this context, it should be noted that the Expert Mechanism includes ‘matters of broad societal application’ as a sufficient trigger for Article 19 of UNDRIP (para. 33). In comparison, under the ILO Convention no. 169, mandatory consultation is confined to direct affectedness (Art. 6(1)(a)).
Mindful that the Expert Mechanism is not an authoritative interpretation by the signatories, this author submits that, commensurate with general rules of interpretation, it is safe to assume that the framers of UNDRIP intended to require for purposes of Article 19 a similar degree of affectedness to the one required under the other FPIC provisions. Those provisions (Arts 10, 11(2), 28, 29(2), 32(2)) all presuppose that Indigenous interests are specifically affected. They constitute express examples of affectedness, indicative of the requisite degree of affectedness under Article 19. This is how statutory examples and general clauses interact in general. To be clear, being specifically affected is not the same as being exclusively affected.
A separate question is if a general duty to consult has evolved into customary international law. The author is not aware of any concordant practice of relevant states (in short, colonized states with an Indigenous population) that would suggest greater reach than specific affectedness. The domestic cases cited by the Expert Mechanism (para. 37) concern cases of specific affectedness (activities on Indigenous lands). Australia recently rejected a general participation right in a referendum, among other things, because of its wide scope. The formulation proposed there was ‘matters relating to’ the respective Indigenous peoples. The Canadian Supreme Court denied a duty to consult for the legislative process. It is also relevant in this context that ILO Convention no. 169 only had limited support. It is hard to imagine that more far-reaching rights would have been accepted by states elsewhere, unless reduced to soft law.
Even the Inter-American Court of Human Rights, recognizing consultation with Indigenous peoples as a general principle of international law, appears to qualify that principle when linking it to ILO Convention no. 169, thereby confirming the confinement to direct affectedness (Comunidad Garifuna v. Honduras, para. 158). This is not to say that there are no specific consultation duties under customary international law.
On a final note, the above describes the situation under UNDRIP. It does not impair the position of Māori under te Tiriti, for constitutional law may well exceed the level of Indigenous rights protection guaranteed under international law. UNDRIP makes provision for that through a non-derogation clause in Article 37(2) thereof.
Concluding Remarks
The issues covered are close to the hearts of all New Zealanders. Dame Anne Salmond spoke in Ōtautahi Christchurch on 28 July about the importance of strengthening the political middle ground. In this spirit, I look forward to continuing the conversation, and once again thank Prof Charters for her engagement.
