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Written By: - Date published: 12:44 pm, April 23rd, 2010 - 51 comments
Categories: law, maori party, national - Tags:

Anyone who still thinks the Declaration of the Rights of Indigenous Peoples is going to have any real world effect in New Zealand needs their head read. The first thing that a court will do when someone cites the DRIP as authoritative is check what the government said about its intention to be bound by it. It will find statement after statement that the government sees it as purely symbolic.

In part, that’s thanks to Labour continuing to push the government’s ministers into giving real answers on what the DRIP will mean in practice. The reason they’ve been doing this is to illustrate to the Maori Party, and anyone else who buys the government’s spin, that this is all symbol signifying nothing.

No court can choose to give effect to a non-binding international document when the government has been so explicit that the document will have no effect in New Zealand. Sorry, that’s the way it is. Courts don’t have the power, and shouldn’t have the power, to willfully reinterpret the unambiguously stated intentions and actions of a democratically-elected government – no matter how much we personally disagree with those intentions or actions. It’s called democracy.

In practical effect, Maori have been sold yet another bill of goods by National. Now, (if you’ll allow me to extend the metaphor) they’re hopefully waiting at the dock for their ship to come in with all the bounty they believe they’ve bought.

But when that ship comes, it’s going to be empty.

51 comments on “DRIP-fed ”

  1. Lew 1

    Why bother having declarations, then?

    I guess we shouldn’t have bothered with the UN Declaration on Human Rights (now superceded by the ICCPR, and implemented as fundamental law in most of what we regard as the civilised world). That sure sounds like a strong progressive position to take.


    • The Voice of Reason 1.1

      Their are two atitudes to Declarations such as this. One is to affirm with intention of implementing them and the other is to affirm with the intention of doing nothing. The Maori party think John Key has signed up for the former, John Key thinks he signed up for the latter. Do Something versus Do Nothing. Hmmm, I wonder which will win out?

      • Lew 1.1.1

        Doesn’t matter what National do in this term. Now that the declaration is signed the way is clear for any future government to undertake whatever implementation they can gain a mandate for. This is why the opportunity should have been taken by Labour when it was presented.

        Again: short-term, blinkered tactical thinking. It’s like a fucking cancer.


        • The Voice of Reason

          Cancer is long term, Lew. But I know what you mean.

          Labour rejected it because the advice they got at the time was that to implement it cut across other legislation here, including the Bill of Rights, F&S and other human rights stuff. The difference between Labour and National is that Labour looked at implementation and all that might ensue from doing so. The Nats have rejected implementation in favour a hollow gesture and a cheap laugh at the Maori Party’s expense.

          Future Governmets may choose to implement all or part of the declaration. Or, possibly, rescind the affirmation given by Key. I seem to recall Bush Jr.did that to a couple of UN charters the NeoLibs opposed when he was first elected. Who knows? For the moment, it is a meaningless gesture; a cheap tawdry trinket for the gullible to get excited over.

        • Bright Red

          Lew. it does matter what the government said when it signed the thing. You can’t get around that.

          • Lew

            Yes, it does. But the fact that they don’t do anything with it in this term doesn’t mean a future government can’t take up where they left off and do something more. Little by little; baby steps.

            There appears to be an attitude that if there can’t be a full-scale revolution, there’s no point in making incremental progress. And on the other hand, you measure parties by the short-term tactical victories they achieve.


            • Bright Red

              Lew. If a future government says ‘yup, we’ll be bound by DRIP’ that’s fine. But that’s not the question (and not likely to become a reality since both National and Labour oppose being bound by it).

              The question is whether DRIP has any effect in NZ law now that we’ve joined. The answer is no because the government says so.

            • Lew

              Well, without the DRIP being signed in the first place, it’s a bloody certainty that no future government will declare unmitigated support for it. But I like how you’ve gone from “no importance” to “not likely to happen anyway”.


    • Bright Red 1.2

      “Why bother having declarations, then?

      I guess we shouldn’t have bothered with the UN Declaration on Human Rights (now superceded by the ICCPR, and implemented as fundamental law in most of what we regard as the civilised world). That sure sounds like a strong progressive position to take.”

      F*ck man it’s like you’re not even reading the posts anymore. The issue isn’t that declarations can never have any impact. It’s that the government has specifically said that this declaration won’t have any impact. What right does any court have to come along and decide that the democratically empowered government intended what it has explicitly said it did not intend?

      • Lew 1.2.1

        It doesn’t have that right. But there are more organs of civil society than the courts, and this sort of thing gets built up one layer at a time.


        • Bright Red

          Then you concede that the DRIP has no legal consequence in NZ and so is meaningless in any practical sense. No-one can go to a court or the government and successfully say ‘you’ve got to do X because of the articles of the DRIP’

        • Lew

          But you can’t do that in any country. It’s non-binding, for the love of Mike. So we return: are any non-binding declarations ever of any use?


          • Bright Red

            yes, they can be. If not, then we wouldn’t see people preparing to cite this one, eh Lew?

            A declaration can have effect if a government signs it and says ‘we take this as a representation of our values and we indeed to implement its principles’ or words to that effect. Our government has said precisely the opposite.

            • Lew

              Ok. What about the next government? What about the fact that, even given the caveats, it’s still a stronger statement than was made by the previous government?

              A lot of the complaints I get seem to suggest that I think it’s all that and a bag of chips. I don’t; I think it’s important and laudable, but far short of what it could have been. There are those who think it’s the biggest deal ever, though — Eddie Durie is one. That should be a strong hint to you that it has some significance, right there.


  2. Neil 2

    If Labour’s strategy is to trivialise every MP achievement, paint them as easily fooled children and to turn its back on the UN then I predict a long stint in the political wilderness for them.

    • The Voice of Reason 2.1

      Hard to trivialise the trivial, Neil. When the Maori party achieve something, I expect Labour will comment. Until then, the MP will just have to put up with people laughing at how easily fooled their leadership is.

      And I don’t think Labour is perceived as turning its back on the UN, given it’s previous leader’s current job, eh?

      • Lew 2.1.1

        Did you hear the speeches in the House about how we shouldn’t take advice from Ethiopia, Burma, etc? Straight out of the crazy reactionary playbook — refer to comments on Kiwiblog and Not PC over the past few months. It’s like they’ve forgotten who they are.


        • The Voice of Reason

          No, I didn’t hear the speeches, or read the comments. Who are you talking about? Why would we take advice from the military regimes in those two countries? Not trying to be a smartarse, just don’t know what you are referring to, Lew.

          • Lew

            I’m simply referring to the fact that Labour and its allies — in Parliament — used the DRIP as a platform to bag the UN, much as the reactionary authoritarian right is prone to do; in apparent ignorance of their own illustrious history of liberal internationalism.

            The whole situation’s gotten twisted around so that National look like the good guys, lovers of international peace and harmony, and friends of the downtrodden while Labour look like churlish spiteful haters. It’d be absurd if it wasn’t so awful.


      • Neil 2.1.2

        a very long and well deserved stint

        • marty mars

          hear hear neil

          • Bright Red

            yeah, MM, you prefer a continuation of National govt to a Labour-ed govt eh? Out of sheer bitterness toward labour you want a govt that delivers:

            higher unemployment, lower wages, higher crime, worse health, privatisation, worse environmental protections

            In other words, you want the opposite of your values to occur to punish someone else.

            You’re for cutting off your own nose to spite someone else.

    • But it is National that is trivialising this particular achievement and treating the MP as easily fooled children. Just check what Smile and Wave has said over the past few days.

      And they are in coalition with the MP.

      Should we hope the nats will be in the political wilderness for a long time.

      What is it with these comments today? Labour is getting pilloried but the party that is really abusing the MP is National.

  3. gingercrush 3

    You ignore the fact that in New Zealand signing the declaration gives Maori the opportunity to campaign this government or any other government that comes after and point to where New Zealand needs to make improvements in regards to that declaration.That goes far beyond symbolism.

    In time governments may use the declaration to shape policy in all areas of government. When things such as lakes, rivers, land etc are up for discussion this declaration will be a focus not only for the government but Maori as well. When Maori and the government are negotiating future waitangi claims, aquaculture claims, foreshore and seabed claims this declaration will be used in those negotiations.

    Finally, like the Treaty of Waitangi, in time this declaration will provide a central point for Maori to keep pushing things they see as important such as the right to self-determination. No amount of dismissal by the likes of you removes that.

  4. deemac 4

    Lew, the references to Burma etc should NOT be taken out of context as you have done! The very valid point being made was that these countries have agreed to DRIP and treat their indigenous peoples like shit. We have enough refugees here to confirm this.

    • Lew 4.1

      Deemac I completely agree that they’re bad bastards. But going from there to the suggestion that we should shun the UN, or that it’s defunct or useless as a body of international law and norm construction and enforcement because of a dispute on a matter of policy is simply opportunist idiocy.


      • Bright Red 4.1.1

        No-one’s saying we should shun the UN. labour didn’t want to sign up to DRIP since it would have felt (unlike Burma, Zimbabwe, etc) morally obliged to give effect to it and thought some of the provisions were too extreme.

        National, on the other hand has clearly said that the DRIP doesn’t count for squat in New Zealand. It’s immoral and dishonest to sign something with no intent to act on it. But this is just a declaration and it’s enforceablity in New Zealand will be determined by courts looking at the government’s statements at the time…. and what did the government say, lew?

  5. gobsmacked 5

    Dismissal (gingercrush)? Trivialising (Neil)? Like this, you mean?

    “It is completely irrelevant, and I would advise him not to waste the price of a postage stamp on it. … I say to claimants that it is a total waste of time to imagine that they can make some kind of claim under this declaration.” (Hansard, yesterday)

    But then Bill English isn’t from the Labour Party, and we are living in this bizarre universe, where the impotent opposition are to blame, and the guys in charge get the applause … even when they are pissing all over the Maori Party.

    • Neil 5.1

      so why didn’t Labour support the MP?

      • The Voice of Reason 5.1.1

        Support ’em in what, Neil? The MP formed as a splinter group from Labour, so, in a general sense, they are in opposition to each other. You wouldn’t expect AC Milan to support their offshoot Inter Milan would you?

        They will, from time to time, both vote in favour of individual pieces of legislation, but both will do so coming from different perspectives. If you mean ‘why don’t Labour support the MP over the DRIP, well, why would they? It’s meaningless.

        • Neil

          “It’s meaningless.”

          you mean to say Labour agrees with Key?

          how much better strategy it would have been had Labour supported the MP and then had National saying it was merely aspirational. Labour would then have had the moral high ground. But no, they threw that away and threw in some nastiness for good measure.

          I wonder if its hurt pride or a lurking racism that makes Labour act so stupidly.

          Very like how Labour acted over the Maori TV coverage of the RWC. Instead of supporting that they played the race card with how it was all a waste of taxpayers money and then when there was a clear breach between Key and some of his ministers Labour had nowhere to go. Accept down, which is where they went.

          But I gather that Labour is in no mood to hear that message I can only conclude that it will take a shift towards the younger MPs before Labour will come to its senses.

          • I’m not ‘Labour’, ‘Neil’ and I say what I mean. Except those times when I’m taking the piss. I suspect you’ll need help working out the difference.

            I said it was meaningless because without a commitment to implementation, it’s, ah, meaningless. At least Labour understood what the DRIP meant in practical terms. National only ever offered the Warehouse version of the real thing.

            • QoT

              That being said, TVoR, if even the likes of Neil here associate “The Voice of Reason” with the Labour Party maybe there’s hope for 2011 after all.

            • Neil

              I thought your last two sentences were outlining why you thought Labour should not support the DRIP.

              Hence my argument – if it were the case that Labour thought that then what a stupid strategic mistake.

              OK, if National see this as meaningless isn’t it worth considering the fact that the MP does not? Labour sided with National, not the MP.

              And not just sided with the “its all worthless side” but chose to insult the MP and a lot of other people at the same time who might think more highly of the DRIP and who might have considred voting Labour.

              Labour could have supported the DRIP and given an undertaking that they would implement this more thoroughly than National. Would that have been so hard? Is there no one in Labour with any brains?

              There’s been a whole series of such incidents with race relations and Labour have failed miserably. I tend to suspect these were not random mistakes.

      • Bright Red 5.1.2

        Not a relevant question. The question is why are they supporting National?

    • gingercrush 5.2

      I agree gobsmacked actually. National is being stupid about howthey describe this declaration and what it means for New Zealand. But that is one of National’s problems at the moment is out-thinking in regards to PR so that every policy or issue released looks well messy.

      And lets all cut the bullshit spin some of you are doing. Labour in 2007 and those who supported Labour not signing in 2007 (i.e. National) didn’t sign the declaration because they didn’t want people back in New Zealand screaming two society bullshit etc and pandering to Maori. The way most of you are acting. Labour didn’t sign it because they’re principled (yeah right)

  6. deemac 6

    Lew: “But going from there to the suggestion that we should shun the UN, or that it’s defunct or useless as a body of international law and norm construction and enforcement” is a wild claim – no-one said that!
    Please substantiate or withdraw.

    • Lew 6.1

      Go and read the speeches in response to the announcement of the declaration, and the General Debate speeches. I haven’t quoted verbatim; I’m simply referring to the line of rhetoric more usually employed by people like ACT.


  7. Ianmac 7

    It is true that the Courts are bound to follow the letter of the Laws passed by Parliament as well as the intent of that Law.
    In this case no law or Act has been passed so the opinions of Govt MP’s will not carry the weight that an Act would. Therefore it is quite possible that a Court sometime in the future will be faced with a decision which quotes the Declaration and the words of any Member past or present will not affect the outcome.
    Therfore I think that it might be a bit premature to say that the Declaration is going to have an effect or not.

  8. dave 8

    I had a good chat to a Labour MP in the pub the other night about DRIP.She`d disagree with most of what you have said Eddie, and she is one of the more knowledgeable ones on DRIP. Its not a given that the declaration is a ” symbol signifiying nothing” and if you think that it is the case then it is you that needs your head read.

  9. Alexandra 9

    Eddie, I agree that the courts will adhere to the intentions of parliament when interpreting ambiguous law when the need for interpretation arises. I’m not so certain that the principle applies to international law. Perhaps a case exists but I don’t know of one? The meaning of the DIR is clear and not ambiguous, so I don’t think the courts will necessarily need to consider intent, particularly when the governments intention is so odds with what they have ratified. It will be interesting to see how this develops and I’m guessing you know as well as anyone that nothing is certain in law. Even though the declaration is not binding in domestic law, it may prove to be persuasive and overtime grow teeth. The result is anyone guess. I’m not a MP supporter and generally agree with most what you have to say, but think your assertion that ” anyone who still thinks the Declaration of the Rights of Indigenous Peoples is going to have any real world effect in New Zealand needs their head read is insulting and arrogant.

    • HitchensFan 9.1

      Where the meaning of a statute is ambiguous and the Courts can interpret it in a manner consistent with DRIP, that is what they are obliged to do.

      ‘Fraid you’re wrong on this one, Eddie.

  10. Puddleglum 10

    I think there’s a couple (at least) of mixed up issues here. The signing of a declaration clearly DOES have significance. That, presumably, was why some countries (including New Zealand) did not sign it.

    Quite separately is the ‘political’ issue. National are trying to soothe their own voters by saying they will do nothing in response to signing it. The MP (with the exception of Hone Hawarira) are using the rhetoric of how (willingly) helpful National (aka Key) have been in supporting Maori ‘aspirations’ and hence giving National political credit.

    Now, either the Maori party is playing politics and being deceitful (yes, it’s everywhere in politics but that doesn’t mean it isn’t what they are doing) by claiming that National are supportive of Maori aspirations in this regard or Key is being deceitful (i.e., actually he DOES support Maori aspirations through this declaration) or the Maori Party (with the exception of HH) really think National supports their aspirations when it doesn’t. The irritation hinges on this web of deceit (of course, I could also mention the difficult political position it places Labour in should it become the government anytime soon).

  11. Anne 11

    ” JonL
    23 April 2010 at 2:01 pm
    I don\’t care if they do fail. Having voted for them in 2 elections, I (and several aquaintance\’s) will not be voting for them again!
    They have been a great disappointment!”

    From Marty G’s post “Can the Maori Party save itself?”

    For all the fine sounding analysis and dissection of the past two days, I think this comment says it all !

  12. Anne 12

    ” Lew
    23 April 2010 at 1:05 pm

    Doesn’t matter what National do in this term. Now that the declaration is signed the way is clear for any future government to undertake whatever implementation they can gain a mandate for. This is why the opportunity should have been taken by Labour when it was presented.

    Again: short-term, blinkered tactical thinking. It’s like a fucking cancer.”.

    Maybe you’re right Lew but it’s easy to say this with the benefit of hind-sight. Can empathise with the sentiment though.

    • Lew 12.1

      Yeah, but I’ve been singing from this particular songsheet since before Foreshore and Seabed time (just not on the interweb, where it really matters : )


  13. Jenny 13

    Eddie you are ignoring the fact that for the first hundred years of settler government in this country the Treaty of Waitangi was a non-binding contract with no substance in the Westminster system. Maori built this document into a real force as part of Maori Renaissance begun in the 1970’s.
    In the decades since, with a mixture of protest and lobbying Maori have made the Treaty of Waitangi a real legal power.

    Eddie by sneering at this country’s signing on to the UN Declaration, you are ignoring the historic triumph achieved by Maori around the recognition of the Treaty of Waitangi.

    You are also covering up for the ugly facts behind the Labour Government’s reluctance to sign up to the UN Declaration on the Rights of Indigenous People’s because at the time it went against the then Labour Government’s efforts to resurrect the failed free trade MAI .

    The Multilateral Agreement on Investment demanded that countries opened up their economy and resources with zero impediment to foreign control and investment including removal of any challenge from traditional or native title.

    Labour was seeking to do the same thing on a bit bit basis, seeking Free Trade Bilateral (instead of Multilateral) Agreements with anyone they could, even with monstrous regimes like communist China.

    The foreign policy of the last Labour Government was so closely tied up with Free Trade that it shaped this country’s foreign policy to oppose the international recognition of traditional or Native title as an impediment to Free Trade.

    The Seabed and Forshore legislation was also shaped by the desire to make New Zealand an easier place for foreign investment. Not long after this law was passed prospecting rights to the ironsands resource of the West Coast was granted to an Australian multinational minerals company.

    I see very little introspection from you on the Labour Party’s motives for attacking Maori gains.

    And I genuinly fear that your attitude bodes ill for the future.

    Eddie on your record, I fully expect that there will be many more attacks on Maori coming from you. In this I foresee you joining the inevitable National, ACT and New Zealand First witch hunt against Tuhoe during next years election campaign.

    Hopefully you will prove me wrong.

    Eddie if you choose to ignore the Labour Party’s role in the alienation of Maori and instead continue your line of sectarian attack politics, I fear it will not help your goal for a return of a Labour Government, but instead cement in place of an even more right wing National led administration.

  14. SPC 14

    The words will be the songsheet of activists until there is a Convention, then compliance becomes an issue for each and every nations government.

    Yet ultimately our governments line will be what it is now – at the time the Convention came into effect the possession of the land of the indigenous people was only that guaranteed under the law we have now (as per Treaty settlements and the F and S Act).

    It changes everything only in principle, not in practice.

  15. deemac 15

    Jenny: “Maori have made the Treaty of Waitangi a real legal power.” is an interesting understanding of what actually happened! Who actually introduced and passed the legislation that changed the Treaty from part of the problem to part of the solution??

    • Jenny 15.1

      I admit that I was struggling for words to describe what actual status the Treaty of Waitangi actually has, but I do know it is often cited in legal matters particularly in the Maori Land Court.

      I also know that it did not always have that status.

      And in fact the Maori Land Court itself had very little statutary powers before 1975.

      You may correct if I am wrong but you will find I am not.

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