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This paper defends the legitimacy-positive impact of a "contextual-participation approach" to indigenous peoples' participation in international law-making. It argues that indigenous peoples' participation should be substantial where the issue being negotiated at the international level is of considerable interest to indigenous peoples and indigenous peoples have not consented to state representation. The "contextual-participation approach" to indigenous peoples' participation realises the justice in indigenous peoples' claims to remedial efforts to recognise their, mostly lost and historical, sovereignty, and to contemporary and evolving legal, and largely democratic, understandings of self-determination, as expressed, for example, in the UN Declaration on the Rights of Indigenous Peoples. At the same time, it balances indigenous peoples' self-determination entitlements to full participation in international law making, as unjustifiably excluded sovereigns, with contemporary political realities.

Willingness of New Zealand courts to enforce legal rights where a political mechanism to address Maori rights exists - land rights - human rights - political rights - principles of the Treaty of Waitangi - takanga.

Aotearoa/New Zealand is not known for egregious breaches of indigenous peoples’ rights. Nonetheless, New Zealand’s legal system is ineffective at implementing international and domestic laws that protect the rights of Maori. This has been seen most starkly in the Foreshore and Seabed Act of 2004, which had the effect of extinguishing Maori aboriginal title to the foreshore and seabed areas and was passed despite almost universal Maori opposition.

<jats:p>Standing back, the greatest influence of Indigenous Peoples on international law is our contribution to a pragmatically-driven yet conscious reframing of its foundations. Partly as a result of our participation in international law, it is changing its nineteenth and twentieth century state-centric, colonial, and positivist character to a more informal, flexible, and partially decolonizing system of law. In this way, Indigenous Peoples are crafting a legal system that achieves the “sweet-spot.” It has sufficient “hard-law” quality to restrain the self-interested instincts of powerful states—much needed by Indigenous Peoples seeking to realize their claims against states—and systemic inclusion and justice.</jats:p>

2007 was a significant year for Indigenous peoples and international law. The United Nations (UN) General Assembly adopted the Declaration on the Rights of Indigenous Peoples (the Declaration on Indigenous Peoples), after more than 20 years of negotiations, and the Human Rights Council established the Expert Mechanism on the Rights of Indigenous Peoples (the EMRIP). Further, the World Intellectual Property Office (WIPO) continued its work on traditional knowledge, as did the working groups associated with the Convention on Biodiversity (CBD). Indigenous issues were considered in institutions such as the World Health Organisation (WHO) and, of course, the Permanent Forum on Indigenous Issues. New Zealand was also the subject of review by the UN Committees on the Elimination of Racial Discrimination (CERD Committee) and the Elimination of Discrimination Against Women (CEDAW Committee) on its compliance with its human rights obligations, some of which raised issues involving Maori. This review details New Zealand's state practice in these institutions.

The developments that have taken place in New Zealand in relation to Indigenous Peoples rights under International law are discussed. Details of different committees formed and laws enacted to ensure and protect the same are highlighted.

Describes, from the perspective of the advocates for Maori claimants, the substance of submissions to and process followed by the United Nations committee on the Elimination of Racial Discrimination (CERD) in determining that the Foreshore and Seabed Act 2004 discriminates against Maori. Source: National Library of New Zealand Te Puna Matauranga o Aotearoa, licensed by the Department of Internal Affairs for re-use under the Creative Commons Attribution 3.0 New Zealand Licence.

In 1840, English officials on behalf of the British crown signed the Treaty of Waitangi—also known as Te Tiriti o Waitangi—with the Indigenous Māori population, affirming Māori sovereignty and guaranteeing their collective rights to the country’s land and resources. Since the 1700s, English settlers had been arriving in Aotearoa (the Māori name for New Zealand) to capitalize on the seal and whale trade. As the number of settlers increased, reports flowed back to Britain of general lawlessness and dubious private land deals, and the crown was forced to consider how best to control its citizens. A treaty with the Māori, officials decided, was the way to do so. The agreement, which established the basis for the relationship between the Māori and the British, is commonly cited as a shining example of how a treaty can recognize and protect Indigenous peoples’ rights by curtailing the reach of the state. But does te Tiriti live up to its sterling reputation? The answer, of course, is complicated.

In 2010 Indigenous peoples' rights continued to feature in discussions in a variety of international fora. Indigenous peoples' traditional knowledge (TK) associated with genetic resources (GR) were discussed under the Convention on Biological Diversity (CBD); under the auspices of the World Intellectual Property Office (WIPO) and within the World Trade Office (WTO). The United Nations (UN) General Assembly's Declaration on the Rights of Indigenous Peoples (Indigenous Peoples' Declaration) featured in debate under the UN Framework Convention on Climate Change (UNFCCC); the UN General Assembly's Third Committee; the work of the UN mechanisms with a specific mandate concerning Indigenous peoples; and, in a landmark ruling of the African Commission on Human and People's Rights (African Commission), was adopted by the African Union. International human rights monitoring bodies also advanced their jurisprudence on the rights of Indigenous peoples.

In 2009 international legal negotiations of particular relevance to Indigenous peoples continued under the United Nations (UN) Framework Convention on Climate Change (UNFCCC); the Convention on Biodiversity (CBD); and the auspices of the World Intellectual Property Office (WIPO). As in previous years, international human rights monitoring bodies developed jurisprudence on the rights of Indigenous peoples, contributing to the development of customary international law in the field. New Zealand was the subject of the UN Human Rights Council's (HRC) universal periodic review (UPR) process for the first time in 2009. The HRC focused on Maori and their rights during the UPR with calls for New Zealand to support the UN General Assembly's Declaration on the Rights of Indigenous Peoples (Indigenous Peoples' Declaration) and to consider constitutional entrenchment of international human rights instruments and the Treaty of Waitangi.New Zealand's reluctance to recognise Indigenous peoples' rights persisted in 2009. New Zealand did not endorse the Indigenous Peoples' Declaration and Indigenous peoples' rights did not feature prominently in New Zealand's statements in international fora.