DON BRASH: Separatism in the fine print

The following is written in Don's capacity as Hobson's Pledge trustee

Hobson’s Pledge does not normally involve itself in the politics of free trade agreements. But one detail within the recently signed New Zealand–India Free Trade Agreement (FTA) has us very concerned. The Government has affirmed its commitment to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and, in doing so, continues to embolden the very separatist agenda that we fight against every day.

The signing of UNDRIP back in 2010 was the catalyst for moves like He Puapua and more.

Inclusion of UNDRIP in the free trade agreement is not just unusual and unwarranted; it is a worrying move to further entrench a declaration that continues to encourage treating New Zealanders differently based on their ancestry.

So what has the New Zealand Government just agreed to?

Article 13.2 of the FTA states:

"The Parties, subject to their respective reservations, affirm the following:

a. the United Nations Declaration on the Rights of Indigenous Peoples, adopted in New York on 13 September 2007 and their respective positions made on that Declaration."

Ironically, in a footnote, the text goes on to say:

“The Parties agree that for India, “Indigenous Peoples” is without prejudice to India’s domestic legal classification, and any recognition of indigenous status shall be in accordance with India’s law or policy.”

When the Minister of Trade, Todd McClay, was asked by Sean Plunket about this on The Platform, the Minister seemed unaware or, at best, unsure why it was there. Like politicians before him, he stated that such an inclusion is not enforceable. If that is so, then why on earth is it in the trade agreement at all?

We know that even while this Declaration is not legally binding, it has symbolic power. From the moment New Zealand signed up, troubling initiatives began to implement UNDRIP’s principles.

We should remind ourselves that it was the John Key National Government that signed New Zealand up to UNDRIP. Key spoke of it in terms of being non-binding, aspirational, and symbolic. Yet his own press release heralded what was in store when he wrote:

“… the declaration:

    acknowledges that Maori hold a special status as tangata whenua, the indigenous people of New Zealand and have an interest in all policy and legislative matters;

    affirms New Zealand's commitment to the common objectives of the declaration and the Treaty of Waitangi; and

    reaffirms the legal and constitutional frameworks that underpin New Zealand's legal system, noting that those existing frameworks define the bounds of New Zealand's engagement with the declaration.”

We know that since then, much has changed, including the courts deciding tikanga is now the first law of the land, and just about every government decision being challenged as not honouring the Treaty.

Nine years after Key signed New Zealand up to UNDRIP, the Labour Government under Jacinda Ardern commissioned the now infamous He Puapua report, which sought to create a vision based on the ideas in UNDRIP. As you will recall, this is the report that argued for a separate Māori parliament, a separate Māori health system, and even separate Māori courts. It argued for compulsory Te Reo in schools, and for pretty much all services to be co-governed by Māori.

Around the same time, Te Puni Kōkiri, the National Iwi Chairs Forum, and the Human Rights Commission began work on a draft plan as to how to implement the declaration.

To give the Coalition Government credit, this draft plan is no longer being pursued. But you can be sure, if a Labour-Greens-Te Pati Maori coalition regained the Treasury benches, work would start again with plentiful references to UNDRIP and how Key signed it, and how the current coalition government affirmed it in the free trade agreement with India.

Finally, we are also worried about the ongoing issue of various coalition agreement terms not being honoured. In this case, the National-New Zealand First coalition agreement was explicit when it said they would:

“Confirm that the Coalition Government does not recognise the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as having any binding legal effect on New Zealand”

Now, strictly, the India-NZ FTA does not make the declaration legally binding. So technically, one could argue that nothing has changed. Except that something has changed – the Government is reinforcing and affirming UNDRIP. In doing so, activists and others will take licence now and into the future to push the separatist agenda we already see around us.

Hold the Government to their word.

We will be writing to Minister McClay, as Minister of Trade, to raise our concerns. You may wish to do the same as well, via t.mcclay@ministers.govt.nz

We are also working to prepare a submission to the select committee considering the Free Trade Agreement, highlighting the points we have raised here. While the FTA is now signed and change almost impossible, it is important that Kiwis have their voices heard, and we will be doing our best, as always, to ensure we stand for one law for all and honour our key axiom – we are one people.

Don Brash, Hobson's Pledge Trustee