Asia-Pacific Regional Workshop on the DRIP Treaty

Published: Wed 1 Dec 2010 11:22 AM
United Nations Office of the High Commissioner for Human Rights and the New Zealand Human Rights Commission
Asia-Pacific Regional Workshop on the Declaration on the Rights of Indigenous People
Hon Tariana Turia, Co-leader of the Maori Party
Wednesday 1 December 2010; 8.15am
The Mercure Hotel, 8 Customs Street East, Auckland City
I am indeed proud, to be invited to open the Asia Pacific Regional Workshop on the Declaration of the Rights of Indigenous peoples.
And in doing so, I acknowledge with deep respect, the manaakitanga of Ngati Whatua, the mana whenua of this land in which our hui is held.
It behoves us all to reflect on what it might have been like to be here in Tamaki Makaurau in 1840, a time when European settlers were completely outnumbered by tangata whenua; at a ratio of something like just 2,000 Europeans resident in New Zealand; with an estimated 70,000 Maori living within 300 miles of Auckland alone.
The generosity of the indigenous people in extending the hand of welcome, was noted by writer, James Cowan, in this comment of 1922:
Let it not be forgotten that had it not been for the true benevolence, the hospitality and the continued friendships of such men as Tamati Waka, Patuone, Te Kawau, Te Wherowhero and Te Puni the British flag might not be flying in New Zealand today
Yet into this setting, in which settlers were welcomed so warmly, we recognise a chequered history of the state’s relationship with the indigenous people of this rohe.
130 years ago in 1881, Paora Tuhaere hosted a pan-national assembly of Maori chiefs at Kohimarama, to strategise around appropriate actions to confront the mass scale of tribal land loss. Nearly a century later, Joe Hawke led a 506 day occupation of their ancestral lands at Bastion Point, to reclaim their land – an occupation which ended in the eviction of over 220 people, the majority being direct descendants.
I wanted to refer to this context because in many ways it resonates with so many aspects of the Declaration on the Rights of Indigenous Peoples.
We recall that part of the long history of more than twenty years of negotiations between nation states and indigenous peoples, was not in vain. Many of you here, fought to remind the world that indigenous peoples have suffered from historic injustices as a result of their colonisation and dispossession of their lands, territories and resources.
You know the importance of Article 10, that indigenous peoples shall not be forcibly removed from their lands.
And we celebrate the intention of Article 25, that indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources, and to uphold their responsibilities to future generations in this regard.
I come to you today, first and foremost as a descendant of Nga Wairiki/Ngati Apa, Nga Rauru, Whanganui and Ngati Tuwharetoa.
But I speak also with the passion of the Maori Party – a political movement which is itself born out of the dreams and aspirations of tangata whenua to achieve self-determination for whänau, hapü and iwi within our own land; to speak with a strong, independent and united voice; and to live according to kaupapa handed down by our ancestors.
I share this space with you also, as signatory to a Relationship Agreement with the National Government; an agreement which states upfront that both the National Party and the Maori Party will act in accordance with Te Tiriti o Waitangi, the Treaty of Waitangi.
So in opening this Asia Pacific regional workshop my intention is simply to place the Declaration in the context of our own local setting in Aotearoa; a context inevitably influenced by tribal, political and governmental dynamics.
There will be others here, best placed to share the views of whanau, hapu and iwi about the significance of the Declaration for our people.
And I want to acknowledge Valmaine Toki of Nga Puhi, Ngati Wai and Ngati Rehua; and Debbie Ngarewa-Packer of Nga Rauru and Ngati Ruanui; who sit at this table as indigenous representatives for Aotearoa.
I will focus instead, on the aspirations we hold as a political party for promoting and consolidating the importance of this Declaration.
I am extremely proud that through the efforts of the Maori Party we contributed to a shift in which we were able to break the shackles that threatened to keep New Zealand, Australia, Canada and the United States from being unable to support the Declaration.
It is very pleasing that alongside our own statement of endorsement of 20 April 2010, Australia and just two weeks ago Canada, have also formally endorsed the Declaration.
The world of course now awaits the decision of the United States.
So what has happened post-endorsement, post-April 2010? There has been considerable debate around the concept of aspiration; and whether that, by default, means it is toothless.
I beg to differ.
To me, aspiration is intimately tied up with our goals, our ambitions, our strategies and our vision. And we know, intuitively, the truth of the saying that without a vision the people will perish.
The aspirations we hold, as indigenous peoples, for the realisation of the rights and obligations set forth in the Declaration are vital stepping stones, benchmarks in our own journey.
We must not under-estimate the significance of our own empowerment – taking back the control; restoring the essence of who we are.
The Declaration honours these aspirations; it echoes and reflects the strategies that we are ourselves responsible for, in our own tribal homelands.
And I want to pause here to acknowledge some of the important, indeed ground-breaking work that iwi are doing in making the Declaration work in our own local setting.
Yesterday Ngati Awa announced that they were establishing a new institute for Post Treaty Settlement futures, which iwi can refer to as an iwi-driven source of knowledge about the ways in which iwi can develop their organisations, make strategic use of their settlement assets, or consider how best to influence the Treaty relationship.
That same iwi is also hosting a conference in early January 2011; called Sharing Power – a new vision for Development – alongside the International Union for Conservation of Nature and Te Whare Wananga o Awanuiarangi
The focus of the conference is on the governance arrangements for protected areas and natural resources, with a feature being the promotion of indigenous community conserved areas.
I mention these two initiatives as reflecting the work that is going on in shaping the pathway forward, honouring and implementing the Declaration through initiatives at the local level.
But I do not want to suggest for a moment that the enterprise and ingenuity of our iwi lets Government off the hook. It is our firm desire as a political party that we continue to place implementation on the radar of this Government and successive administrations.
The important thing for us all to remember is that a Declaration can only be as effective in its implementation as the jurisprudence around it.
And if I can just refer to one more local example it would be one of great topical interest to our nation, the Marine and Coastal Area (Takutai moana) Bill.
A brief background to this bill begins with what has been called the Ngati Apa case.
Ngati Apa asked whether the Court had jurisdiction to consider whether land in the foreshore and seabed had customary land status. The Court of Appeal upheld the finding of the Maori Land Court that yes, the Court, did indeed, hold that jurisdiction; and Maori had every right to go to Court to seek or protect common law property rights – customary title.
In lightning-quick time the former Government passed the Foreshore and Seabed Bill Act in 2004 which extinguished customary title – meaning no whanau, hapu or iwi could seek customary title.
And then the floodgates opened.
A hikoi of approximately 40-50,000 marched against the legislation outside Parliament. There was national criticism of the legislation by the Waitangi Tribunal who found the policy breached the Treaty of Waitangi and various representatives of the United Nations criticised the Act for its discriminatory effects.
Six years down the Track, we are on a path determined to repeal that 2004 Act, but also to restore the ability for customary title to be recognised.
And so the 2010 Bill explicitly recognises the enduring mana-based relationship of iwi and hapu to the marine and coastal area in their rohe through the automatic award known as mana tuku iho. Maori do not have to prove anything in order to achieve this recognition, it is theirs by right as tangata whenua; people of the land.
But the Bill goes further, to incorporate tikanga as a key element in the test for customary title and allow for differences in tikanga from group to group.
The inclusion of tikanga in the Bill allows a protected customary rights holder to delegate or transfer the rights in accordance with traditional practices. The Bill also explicitly allows for customary practices to evolve over time. Both of these developments recognise and allow for the evolving nature of customary rights.
There are other initiatives in this Bill which set out a new expectation of how indigenous rights can be considered in the statute. One in particular, is around the burden of proof.
The 2004 Act required Maori to prove extinguishment of customary title had not occurred. Proving something had not happened over a 170 year period was a significant burden on Maori. The 2010 Bill places that burden on the Crown. If the Crown cannot prove extinguishment then customary title will be recognised (provided the other elements of the test are met).
I wanted to set out this example in some depth because I think it comes back to that spirit of self-determination.
We wanted to see the shared burden of proof, and the notion of customary jurisprudence embedded within the bill because it is inherently setting out a new way of indigenous interaction with the state, based on principles of justice, democracy, and the promotion and protection of indigenous rights.
This is, however, just one of many legislative and policy challenges which we must apply ourselves to in upholding the aspirations of the Declaration.
A particularly auspicious one will be the process of the Constitutional Review, which will be shortly announced.
It will require our best thinking to be applied to the question of where does the Declaration on the Rights of Indigenous People fit in relation to Te Tiriti o Waitangi – a conversation, I think, for another day.
I want to wish you all great courage as you venture forth in the quest to develop practical guidelines for how to use the Declaration on the Rights of Indigenous Peoples.
We must continue to be motivated by the Declaration itself – and as that Declaration itself suggests, the journey towards a standard of achievement to be pursued in a spirit of partnership and mutual respect.
I can do no better than to refer to the statement of Les Malezer, Chair of the International Indigenous Peoples' Caucus:
It is a Declaration which combines our views and interests and which sets the framework for the future. It is a tool for peace and justice, based upon mutual recognition and mutual respect."
Tena tatou katoa

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