GRAHAM ADAMS: Why was UNDRIP ‘affirmed’ in the India FTA?

Exactly how a clause “affirming” the United Nations Declaration on the Rights of Indigenous Peoples found its way into the India-New Zealand Free Trade Agreement is still unclear but the question is not going to go away any time soon.

In fact, it is turning into a whodunnit as political sleuths try to figure out when the clause was introduced, who put it there, and who wanted it included. They have been forced to try to join the dots and speculate due to the government’s inability — or unwillingness — to offer a convincing explanation.

It will undoubtedly be a point of heated contention as the Foreign Affairs, Defence and Trade Committee examines the treaty — which was signed in New Delhi in April — before it goes to Parliament for ratification.

National’s Minister for Trade and Investment, Todd McClay, has said he is unaware of how it got there. Despite being the lead political negotiator, he appeared extremely flustered in an interview on The Platform. When Sean Plunket demanded to know, “Who put that [clause] in there?” he could only say he would “go back and have a look at the negotiations”. 

While the UNDRIP clause is not directly binding on New Zealand’s domestic law, it is contentious mainly because of the wider implications of it being “affirmed” in a treaty. 

Parliament’s website says: “Courts tend to presume that legislation and the common law should be interpreted and applied in a way that is consistent with international law.”

Or, to state it more bluntly, ratifying the reference to UNDRIP opens up the possibility of activist lawyers and judges deciding that both New Zealand’s Parliament and government strongly support and agree with its principles and that they can therefore be used to guide the formation of law and policy.

UNDRIP, of course, is not simply an “expression of aspiration” as John Key claimed when his Minister of Maori Affairs, Dr Pita Sharples, unexpectedly went to New York in 2010 to announce New Zealand’s support at the UN.

As Gary Judd, KC, wrote on his Substack this month: “UNDRIP is not just an abstract international statement. It became the foundation for He Puapua… [which is] a blueprint for major constitutional change, including forms of co-governance…”

Commissioned by Jacinda Ardern’s government in 2019, He Puapua presents a detailed roadmap for establishing a parallel Māori state that would radically reshape the nation along racial lines.

Judd suspects the UNDRIP clause was “inserted to advance a domestic political project under cover of trade policy”.

“Whether that happened through ideological zeal within the bureaucracy or through deliberate ministerial choice, the effect is the same: Parliament is being asked to approve a trade treaty carrying constitutional freight that has never been honestly put to the public.”

Last week, when The Platform’s Michael Laws asked David Seymour, “How the hell did that [clause] get in there?”, he suggested it was likely to have been the mandarins in MFAT who were responsible rather than Todd McClay himself.

“The Ministry of Foreign Affairs... have a specific Māori partnership organisation... They have gone about inserting this, in spite of the minister, I suspect.”

No matter how and when the clause was introduced, both National and Act appear to have been caught completely off-guard by the sudden rush of criticism. 

In a response on May 20 to an inquiry from Don Brash of Hobson’s Pledge, McClay noted that UNDRIP was “first included in the United Kingdom and European Union FTAs”, signed in 2022 and 2023 respectively.

But this attempt to soothe Brash’s concern glosses over reality. The UK-NZ and EU-NZ agreements didn’t go further than to “note” that New Zealand and the UK hold “positions” with regard to the Declaration. The India-NZ treaty, however, “affirms” New Zealand’s commitment to UNDRIP, which is a significant shift. 

“Noting” does not imply approval; it simply acknowledges UNDRIP’s existence. “Affirming” explicitly signals strong political agreement with, and commitment to, the text of UNDRIP, along with our respective national positions.

What will astonish — and anger — many centre-right voters is that, despite National being elected in 2023 in large part to eradicate co-governance, it has not only strengthened the language referring to UNDRIP but McClay is attempting to downplay its significance.

The intense scrutiny is obviously discombobulating for National, but also for Act, which has promised to join National and Labour in ratifying the agreement when it comes before Parliament. Many of its supporters will view endorsing an affirmation of UNDRIP as totally incompatible with its stand against co-governance — notably pursued by the Treaty Principles Bill. 

In his email to Brash, McClay tried to allay fears that the clause might open a Pandora’s box of legal consequences:

“I asked my officials to review the references to UNDRIP in a number of chapters in New Zealand’s recent trade agreements including the NZ-India FTA and, in all cases, any references to UNDRIP do not impose and are not intended to impose any obligations on New Zealand law or government policy…”

Nevertheless, he seemed to grasp that such an assurance might not entirely win over his critics. He promised to do better: “Following the review, I have directed that UNDRIP should not be included in future FTAs unless it might be necessary as part of the negotiations process. However, this would be a decision for ministers and would not change the fact that UNDRIP is not legally binding.” 

Again, McClay is glossing over the fact that once UNDRIP is affirmed in a binding international treaty, the courts can harness it to guide domestic law.

A far more satisfying solution than offering a good behaviour bond in future negotiations would be for McClay to ask India to agree to remove, or amend, the clause now. He has asserted changes are not possible and the agreement has to be accepted or rejected in its entirety, but that doesn’t appear to be true. Under the Vienna Convention on the Law of Treaties, changes can be made between signing and ratification so long as they do not defeat the purpose of the Treaty. Cleaning up the text of a treaty before ratification to ensure it accurately reflects the parties’ intent is a well-established procedure known as “legal scrubbing”.

And it seems very unlikely that India would object to the UNDRIP clause being removed or amended given it has no relevance to the agreement’s objectives and wouldn’t in any way undermine its intent. Indeed, to underline the clause’s irrelevance to Indians, its negotiators entered a reservation stating that it didn’t apply to them.

Why, then, would McClay assert that nothing can be changed in the document at this stage? Perhaps Seymour’s comment to Laws that Labour might resist any changes to the text of the agreement offers a clue. As he put it: “The Labour Party might say, ‘C’mon guys, we said we’d support this, why the change?’”

NZ First has said it will oppose ratifying the treaty, so Labour’s vote is crucial to the enabling legislation being passed. The necessity of keeping Labour on side might explain McClay’s promise to avoid introducing a similar clause into future agreements rather than agreeing to delete the clause in the current document — or at least downgrade its status to “noted”.

It has been mooted that Labour may have been responsible for the strengthened UNDRIP clause being included as the price of its support. After all, the party has never offered any indication it has given up on implementing He Puapua. Even after Ardern resigned in January 2023, Hipkins refused to repudiate co-governance when he was Prime Minister despite having promised a bonfire of unpopular policies.

McLay’s promise to shut the stable door in the future after the He Puapua horse has bolted will undoubtedly please Labour, the Greens and Te Pāti Māori immensely but many among the Coalition government’s voters will remain incensed until the agreement has been altered.

Gary Judd certainly pulled no punches in his submission to the parliamentary committee examining the treaty:

“If this committee is to truly act in the interests of all New Zealanders, it will recommend to the House that the FTA not be endorsed by Parliament until it has been amended to remove [the UNDRIP clause].

“A further recommendation the committee could legitimately make depends on how the provision got there. If it was with the minister’s approval, he should resign. If he did not approve it, the officials who ought to have drawn attention to it to seek approval should be disciplined.”

Graham Adams is a freelance editor, journalist and columnist. He lives on Auckland’s North Shore.