MARY-LOUISE KEARNEY: Is UNDRIP enforceable under the law of a sovereign state? Absolutely

Key words: UN legal instruments – sovereign state law  -  legislated  UNDRIP National Action plans – legal solution to FTA issue

Is UNDRIP -   technically  an  aspirational  non - legally  binding  UN mechanism - actually enforceable in national law?    If so, why do  politicians  say the opposite?   Are they seeking to  allay  citizens’  concerns?  Or are they disregarding  the  reality  of  legislative  processes?  

In recent weeks , the new  NZ-India Free Trade Agreement (FTA)  has come under fire for various reasons. Apart from NZF’s objection to the inclusion of a clause related to immigration,  informed  people  have queried the  reference related to UNDRIP (the UN  Declaration  on the  Rights  of Indigenous Peoples)  in Chapter  13 .2.

This has triggered a flurry  of denials from  politicians  and ministers (inter alia, David  Seymour and Louise Upston)  who say that  UNDRIP has been mentioned in similar trade deals (such as the EU) and anyway, this Declaration is “aspirational  and virtually unenforceable.”  Really? When the legal aspects of UNDRIP are  very clear?

• UN Background

UNDRIP is part of the United Nations action  in international  law and diplomacy . This entails  an array of  legal instruments to be signed by Member States to support  and enforce  the UN mission for global peace and development.   UN long - term action contrasts with its immediate support  to  settle   conflict  or  to intervene  in   human emergencies  or environmental disasters.

UN legal instruments  range from  the most important -  legally binding treaties and conventions which exact specific commitments from the signatories  -  to  (seemingly)  innocuous  non- legally binding   documents  such as declarations, compacts and even statements which are aspirational  in nature.   Some instruments  change category  when  a particular  issue  gains global significance  or when aspiration advances to the point of requiring  more regulation in law. This is usually  a long process sometimes  spanning  decades  and requiring cautious and forensic examination by national lawyers to assess how  commitment might  fit with the law of a sovereign state.    For example,  treaties and conventions    have a two-step process  involving signature and ratification. A very  complex example is the  1992 UNFCCC (UN Framework  Convention on Climate Change) which is the parent treaty of the 1997 Kyoto Protocol  and the 2015 Paris Agreement (both  treaties themselves) . In contrast,   the 2016 UN New York Declaration for Refugees and Migrants   progressed to the 2018 UN Global  Compact  for Safe, Orderly and Regular Migration   (both non legally binding)  but no  further so far.  No surprise here  given the sensitive topic.

• UNDRIP History

Some background facts recalled:

UNDRIP relates to  the Human Rights domain of the UN. “Human” is clearly the generic term. But  in a context where  cultural identity  takes precedence, indigenous rights  receive the privilege accorded to  those of women and minority groups ( diverse sexualities , cultures and religions).

In 2010  former PM John  Key sent  the Minister  of Maori Affairs, Pita  Sharples  to the UN  to sign this document  during  the annual  General Assembly.

Earlier in 2007,  New Zealand  abstained from  signing UNDRIP due to concerns  about  its possible ramifications for race relations and  incompatibility with New Zealand’s democratic and constitutional  arrangements.  Australia, Canada  and  the US   also abstained  but like NZ,  they subsequently signed. The contentious articles for NZ were  19 ( indigenous consent  in relation to the final authority  of sovereign law)  26, 28 and 32  ( land  issues  including   indigenous consent  for land use).  Twenty years later in 2026  New Zealand , it is likely   that   a sympathetic judiciary  or  local councils eager to promote  Maori interests  might   embrace UNDRIP with enthusiasm.

In  2010  John Key’s   government  felt that  adherence to UNDRIP  would not  threaten New Zealand’s  status as a sovereign  nation.  This was  protected  in  the wording  of UNDRIP’s  concluding   Article 46  Point 1 which acknowledges the  integrity of each sovereign state and its final  authority over its own affairs:

46.1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

Given this  safeguard, New Zealand signed the UNDRIP Declaration in 2010.

• National  UNDRIP  Action Plans and their enforcement  capacity

However, UNDRIP’s supporters  -  both inside the UN and, especially , without -  had no intention of waiting for years for this Declaration to take effect.   A much faster legal strategy was devised, namely the option to establish National Action  Plans -  as part of a country’s legislation -   to  implement  UNDRIP ‘s agenda and principles.

In the 4  countries ,  which belatedly  signed UNDRIP,   progress to date is as follows:

Australia has not passed legislation  or established a national implementation framework. Discretionary action rather than enforceable standards is used  to address indigenous issues.  Hence, UNDRIP has no binding force in domestic law,  no action plan  and no accountability mechanisms.  However, legal advocates have proposed  a Commonwealth UNDRIP Implementation  Plan to align the instrument with federal laws and policies, a National UNDRIP Action Plan and   annual public reporting to Parliament. This lobby for a different legal  approach and status  may bring change.

Canada has  established  a  formal National  UNDRIP Action Plan following  the Government of Canada  UNDRIP Act which received Royal Assent in June 2021. The Action Plan, released in June 2023 and developed  with  indigenous communities,  serves as a roadmap for Canada to  effectively implement -  and fund  - measures to recognize and address  their  needs and rights .  The Plan  contains 181 items  targeting 5 main areas:   Shared Priorities, First Nations  Priorities, Inuit Priorities, Metis Priorities and Indigenous Modern Treaty Partner Priorities. Efforts are underway  to ensure that Canadian law  fully  aligns with  indigenous rights, including those related to property issues. In recent years,  litigation  involving  land ownership has increased  notably in British Columbia and  several  landmark judicial  rulings  have upheld indigenous claims. An example is  the 2025  Cowichan Tribes  vs Government of Canada victory which awarded  indigenous groups “prior and senior title”  to extensive  land areas  near Vancouver.  Already this decision  has created  ramifications for private property rights  not only in the  BC province but  throughout  Canada.    

New Zealand was making rapid  progress towards  a National  Action Plan in 2022-23  led by  Maori Development Minister Willie Jackson.  The He Puapua Report was central to this project.   Initially concealed from  New Zealanders  by the Ardern Cabinet  until   2020,  this report is  described as a blue print for Maori self - determination and ultimate  tribal  rule by 2040. Mr Jackson’s  consultations with Maori  for a Draft UNDRIP Action Plan for New Zealand were compiled in a report entitled  Key Themes for Maori Targeted Engagement  (Maori Affairs Department 2022.) https://www.tpk.govt.nz/mi/a-matou-whakaarotau/te-ao-maori/un-declaration-on-the-rights-of-indigenous-peoples/maori-targeted-engagement.

This document  resonated closely with  He Puapua’s content but even the  Labour government knew the dangers  of trying to legislate such a  radical plan.  Although this project was sidelined by the 2023 election,  it demonstrates that   politicians with a majority in Parliament could legislate a  similar  UNDRIP Action Plan for New Zealand at a future date. Public consultation, though desirable, would not be legally required.

The US  has  no official  UNDRIP Action Plan.  This instrument is viewed as  a framework to enhance Indigenous rights and improve government-to-Indigenous relations and its principles are  carefully integrated within domestic law.    Support focuses  on  consultation, cultural preservation, and socio-economic development   but  clearly this  a very long way  from granting full political self-determination or legally binding obligations under international  law.

So, only  Canada and New Zealand  acted  to establish national action plans -  but took care to route these via their  respective legislative  processes to ensure  their binding  force. Canada’s process succeeded and  New Zealand, though interrupted, would certainly try again under a Left leaning government.

• The Judd Solution  to the UNDRIP reference  in the  NZ-India  FTA 

Important legal action related to UNDRIP is currently underway in New Zealand in relation to the new NZ-India Free Trade Agreement . Why was a reference   to UNDRIP included in the FTA’s  Chapter 13 Section 2 (International  Cooperation)?

This  mystery   has been widely reported.  But who authorized this and for what reasons may never be made public.   The FTA must now be approved in law by Parliament and the   Coalition is anxious to avoid any re-litigation with India .

As matters stand,  the  current UNDRIP reference  could  finally be embedded  in  the  Act  which  formally endorses the FTA.  If so, a non- legally binding instrument will figure inside  legislation which is legally binding - an anomaly .  Moreover ,  activist lawyers and judges will  quickly see opportunities to interpret  a precedent in matters related to  Maori sovereignty .  In his  recent  submission to the  Select Committee for the FTA bill, Gary Judd KC  noted that  this treaty  will become part of NZ domestic law  via  Parliamentary  legislation.   At the same time,   courts can still use international treaties   when interpreting legislation. He also cited Supreme Court Justice Susan Glazebrook who has written that UNDRIP is  now increasingly embedded in New Zealand’s legal framework. Given this evolving context,  the wording  in the FTA’s Chapter 13.2. matters.  To state that  the signing parties  affirm (rather  than take note of )  the UNDRIP Declaration  expresses the more robust concepts of   endorsement, commitment and guarantee.

Furthermore   Judd outlined a pragmatic  solution to this problem  which can both avoid any need to re-litigate the  FTA  agreement and  clearly define the  exact  status of UNDRIP under NZ law.   He proposed that the  Coalition’s omnibus  bill  to  bring the FTA into legislation should include   all aspects which require  clarification  or special definition. To this end,  Judd suggested  the inclusion of  specific  provisions:

i)   that the FTA’s affirmation of UNDRIP does not give it the force of law, does not give it presumptive weight in interpreting legislation, and does not make it a relevant consideration;

ii)  and,  for the avoidance of doubt, that for all purposes of New Zealand law, policy, and practice, UNDRIP must be disregarded.

This proposal  would seem to  solve all problems for the Coalition -  which,   provided NZF gives its support,  could then pass this legislation without Labour’s numbers. Objections may  well come from the pro-UNDRIP camp but  if the Coalition bows to these,   voters may conclude  that  indigenous issues  take priority  over  national interests.    A  significant risk in an election year.  Watch this  space for the  outcome of the FTA issue.

In conclusion,  the final lesson is that each  sovereign state is  legally  responsible for  its UNDRIP action  -  not the UN.   At some future date , whether NZ  legislates a national  UNDRIP Action Plan  or  defines the scope of UNDRIP in the law of the country,   this  fact  will prevail.

The author, a dual NZ and French citizen, was a UN civil servant in senior and director posts  for 30 years. This is a personal comment.