| Another Constitutional Trojan Horse: advancing change through political stealth |
FOR ALL THE FOOLISH NONSENSE about "tsunamis" talked about the Indian-NZ Free Trade Deal, there is a genuine issue that Gary Judd KC has identified in reading through it, and it's not about free trade or butter chicken. It's about a poisonous clause inserted at the obvious behest of the NZ negotiators.
"The striking feature of this Free-Trade Agreement," notes Judd, "is that it brings the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into the text of a trade treaty. That is not a side issue. It is a political and constitutional declaration inserted into an agreement that is supposed to be about trade. ... New Zealand’s Free-Trade Agreements with the United Kingdom and the European Union refer to indigenous rights and Māori participation. But the India agreement goes further. It is the first to affirm UNDRIP expressly. That is a significant escalation."
Why the hell is it there?
Everything points to this UNDRIP wording having been included at New Zealand’s initiative, not India’s. India appears to have agreed only on condition that its longstanding reservation was recorded. There is no obvious reason why India would want UNDRIP written into a trade agreement with New Zealand. ...
If it truly changed nothing, it would not be there. The obvious reason for including it is not trade with India but politics within New Zealand. A trade agreement is being used to advance a domestic constitutional and political agenda. That is an abuse of the treaty-making process. A provision with no real trade function, but clear ideological value at home, has no legitimate place in a Free-Trade Agreement.
Once this affirmation is in a ratified treaty, it will inevitably be invoked inside New Zealand as proof that the country is committed to UNDRIP in a serious and operative way, not merely in some airy symbolic sense. Lawyers, activists and judges will be invited to treat it as yet another marker of state commitment. To dismiss that as mere technicality would be naive.
You'll remember that Helen Clark, as Prime Minister, was astute enough to have her UN representative vote against the Declaration -- one of only four nations to oppose. (As Judd notes: "India voted in favour (see here) but immediately made it clear that it did so subject to an important reservation. That same reservation now reappears in the FTA.")
It was John Key who blithely acceded to signing up simply in order to bolster his parliamentary support from Pita Sharples's Maori Party.
What Key casually signed away was not trivial, as we saw when Ardern's Labour Government began drawing up the He Puapua document under UNDRIP's impetus. "He Puapua is not a minor discussion paper," Judd reminds us. "It is a blueprint for major constitutional change, including forms of co-governance. One example is paragraph 15: 'If they choose, Maori must be able to participate in Crown governance."
Clark's objection to the Declaration was principled, and what Clark's UN representative Rosemary Banks said about it then is as valid now: Four provisions in the Declaration in particular were [and still are] "fundamentally incompatible with New Zealand’s constitutional and legal arrangements, [with] the Treaty of Waitangi, and [with] the principle of governing for the good of all its citizens."
What were those four provisions?
- Article 26 stated that indigenous peoples had a right to own, use, develop or control lands and territories that they had traditionally owned, occupied or used. For New Zealand, the entire country was potentially caught within the scope of the article, which appeared to require recognition of rights to lands now lawfully owned by other citizens, both indigenous and non-indigenous, and did not take into account the customs, traditions and land tenure systems of the indigenous peoples concerned. The article, furthermore, implied that indigenous peoples had rights that others did not have.
- The entire country would also appear to fall within the scope of article 28 on redress and compensation. The text generally took no account of the fact that land might now be occupied or owned legitimately by others, or subject to numerous different or overlapping indigenous claims.
- Finally, the Declaration['s articles 19 and 32] implied that indigenous peoples had a right of veto over a democratic legislature and national resource management, she said. She strongly supported the full and active engagement of indigenous peoples in democratic decision-making processes. New Zealand also had some of the most extensive consultation mechanisms in the world. But the articles in the Declaration implied different classes of citizenship, where indigenous had a right to veto that other groups or individuals did not have.
What is most objectionable in all this is the contempt it shows for ordinary New Zealanders. Constitutional change of this magnitude should be argued for openly, defended honestly and submitted to democratic judgment. Instead, it has been advanced by ministers, officials and sympathetic elites through opaque processes, delayed disclosure and legal increment. That is no way to alter the foundations of a country.
The obvious remedy is greater democratic control. If politicians, officials or judges wish to drive constitutional change, they should have to defend it before the public in clear terms and win consent for it, not smuggle it through advisory reports, bureaucratic process or the fine print of a trade treaty.
That is the real issue raised by this agreement: not trade, but whether constitutional change in New Zealand will occur by democratic choice or by political stealth.