Inclusion of UNDRIP in India FreeTrade Agreement

Oral submissions to the Foreign Affairs, Defence and Trade Committee

This morning I made oral submissions. I had 5 minutes to support my own submission (Part 1). I received instructions from Hobsons Pledge and had 10 minutes to present on its behalf (Part 2). Below are the notes I used. There were no questions after Part 1, but there were questions after Part 2 from the chairman National MP Tim van de Molen, and from ACT MP Laura McClure.

The chairman’s questions suggested first, that there was a reservation from New Zealand concerning the affirmation of UNDRIP. I explained that there was not. India had required a reservation, but New Zealand had not.

He suggested, secondly, that New Zealand’s position was that UNDRIP was not binding. I pointed out that was incorrect. Cabinet had decided at the beginning of 2024, that implementation be halted, but NZ’s position had not been changed, the most recent statement of July 2023 being that NZ was committed to it.

McLure’s question concerned my solution for dealing with the problem (given at the end of Part 2). She asked whether it would be enough for New Zealand to state a new position. I said that should certainly be done but it wasn’t enough as there would still be affirmation and the courts would likely take that to support utilisation of UNDRIP in decisions. Nothing less than a statutory prohibition would suffice.

Oral submission Part 1

Thank you, Mr Chairman

I support the FTA, but it has a problem

The problem my submission addresses is this. /

The FTA affirms UNDRIP. / It also affirms New Zealand’s position on UNDRIP. / In legal language, / affirmation signals acceptance of a commitment. / Earlier FTAs did not do that. / They said UNDRIP and New Zealand’s position / should simply be noted.

The FTA is a treaty. / It does not become domestic law / unless Parliament incorporates it. /

But courts can still use treaties / when interpreting legislation / and in other decision-making. /

That matters here. / Justice Susan Glazebrook has written / that UNDRIP is becoming increasingly embedded / in New Zealand’s legal framework.

Despite that, / affirmation in the FTA still matters. / It strengthens / and legitimises that movement.

In July 2023, / New Zealand’s representatives told the UN / New Zealand is committed to upholding UNDRIP, / and that self-determination requires Indigenous Peoples / to participate effectively in decision-making / that affects them.

As far as I can see, / that is the latest statement of New Zealand’s position.

Since government decisions affect all New Zealanders, / the implication is broad. / In substance, / it points toward co-governance, / tribal vetoes / and even tribal rule.

That should be contrasted with New Zealand’s earlier position. /

In 2007, / Helen Clark’s Government told the United Nations / it could not endorse UNDRIP / because endorsement would imply special rights, / a veto over democratic decision-making, / and different classes of citizenship. / It said those outcomes were incompatible / with New Zealand’s democratic / and constitutional arrangements.

He Puapua shows / those concerns were not fanciful.

The present Government / did not formally change New Zealand’s position. / It simply stopped work on implementation. / Even that direction has not been obeyed / because commitment to UNDRIP / has been put into the FTA.

At 9:30, / I am presenting on behalf of Hobson’s Pledge. / I will then explain / how the problem can be resolved.

I am happy / to answer questions.

Part 2

Than you, Mr Chairman.

At this time, I speak on instructions from Hobson’s Pledge

In my earlier submission, I explained why we should be deeply concerned about the provision affirming UNDRIP—and New Zealand’s position under it. I also endorse what you have heard this morning from Richard Arlidge and Fiona MacKenzie.

I recognise that it is impracticable to reopen the signed agreement, and that the Committees is constrained by standing orders in what it may do, but I do have a practical solution.

Before I get to that, let me give you one example of how that affirmation may be used in practice.

Last Thursday, my local council—the Far North District Council—resolved to enter a collaboration with the hapū of Ahipara for the management of a historic reserve.

The Reserves Act 1977 requires the council to manage that reserve for the benefit and enjoyment of the public, in accordance with the Act.

The Act makes the council responsible for management. Only the Minister may decide to place management in someone else’s hands.

So the decision to hand management to the hapū is, legally questionable at the very least.

If that decision is challenged in court, Article 26 of UNDRIP may be used to support an interpretation of the legislation that favours transferring management to the hapū.

Article 26 was one of the reasons New Zealand refused to support UNDRIP in 2007. It says, among other things, that Indigenous peoples have the right to control land they have traditionally owned or occupied.

In the early days, the Ahipara reserve land was part of a significant Māori settlement. But it was sold, and went through several owners, including the Catholic Church, before it ended up being owned by the Council as a reserve.

Nevertheless, it would qualify as land traditionally owned or occupied—and therefore land to which Article 26 applies.

As New Zealand’s affirmation of UNDRIP gives UNDRIP added weight in legal decision-making, the council’s hand will be strengthened if it argues that the legislation permits this transfer of management.

Now, leaving that practical example and as a lead-in to a way in which the government and the House may remedy the problem, I want to refer to the national interest analysis presented to the House with the FTA.

I want to focus first on Section 4—advantages and disadvantages to New Zealand if the treaty enters into force.

At Section 4.12, on page 60, dealing with Chapter 13 of the FTA, the analysis accurately records—at the end of paragraph 4.12.1—that:

“the chapter does not impose legal or financial obligations on either Party, and it is not subject to dispute settlement mechanisms under the Agreement.”

In other words, neither New Zealand nor India can compel the other to do the things in Chapter 13. But, as I have said, that does not mean the UNDRIP provision is harmless—or ineffective. If it were meaningless, it would not have been included.

What the NIA does not tell the House is that affirming UNDRIP is in the FTA. UNDRIP is not even mentioned. You and the country probably only know about it because my client discovered it within the thirteen hundred plus pages.

Nor were elected representatives told that the Cabinet direction to halt implementation has been ignored.

I understand the Minister has now directed MFAT that UNDRIP is not to be referred to in future FTAs. That is welcome—but it does not answer the obvious question: how did it come to be affirmed in this one?

It is a serious matter if a ministry has ignored a government direction that something be halted. It is a serious matter not to even make the House aware that New Zealand has now made a commitment. These serious failures demand an inquiry, and I urge the Committee to recommend one.

But a future instruction—and even an inquiry—still do not fix the problem already created.

The NIA points to the solution.

Section 6 says that new legislation and amendments to existing legislation will be required to bring the Agreement into force. It says those measures will be included in a single omnibus bill.

I urge the Committee to recommend that the government and the House include in that bill a provision along these lines:

Subsection (1), 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.

And a second subsection, for the avoidance of doubt, that for all purposes of New Zealand law, policy, and practice, UNDRIP must be disregarded.

I also urge the Committee to recommend that the government formally advise the United Nations that New Zealand no longer endorses the declaration, and that the position taken in 2007 has been reinstated.

I am happy to answer questions.