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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.
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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.
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Arguments for constitutional reform to recognise Rangatiratanga and Tikanga Maori.
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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.
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In this paper I argue that Maori should cite and rely on the Declaration on the Rights of Indigenous Peoples in their legal and political claims as this process can lead to the internalisation of these norms even when states reject them. The paper draws heavily on the case study of the use of the Declaration in a Waitangi Tribunal claim relating to Maori self-determination.
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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.
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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.
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