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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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The Foreshore and Seabed Act 2004 caused many New Zealanders grave concern. In this article I suggest that a number of the Government's actions since the passing of the Foreshore and Seabed Act bring into question several of its central claims for legislating and the subsequent overriding of Tiriti o Waitangi and human rights laws. As a result, I argue that the inadequacy in our constitutional arrangements requires a change of approach—a new game plan: constitutional change. The second part of the article examines the work of the Maori Party. Its actions in encouraging an increasing level of Maori politicisation away from expression outside the State and towards the electoral process, arising out of opposition to the Foreshore and Seabed Act, constitute another changing of game plans. The article concludes by emphasising how the Foreshore and Seabed Act has encouraged us to take a longer term vision in order to foster more positive relations, a vision that encompasses the need for genuine constitutional change based on respect for human rights and Te Tiriti o Waitangi.
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