There has been a bit of controversy in New Zealand this week as the ostensibly centre-right government signed up to the non-binding United Nations Declaration on the Rights of Indigenous Peoples to make a gesture to the Maori Party with whose support they govern. This is after the previous centre-left government refused to sign up to it, as “it was incompatible with New Zealand’s constitution, legal framework and the Treaty of Waitangi”. The UN declaration includes but is not limited to self-determination and reappropriation of historically occupied land for indigenous peoples, and futhermore fails to define what an indigenous person is. As noted, it is non-binding, apparently being an aspirational document (with severe flaws which in-part can probably be put down to its imprecise, flowery and waffly language). Given this, the government - led by the National Party - has said signing this declaration will have no legal effect. The National Party is being disingenuous here, as there are likely to be legal effects from signing this despite there being no real indigenous people in a meaningful sense in New Zealand anymore.

The government signing up to the United Nations Declaration on the Rights of Indigenous Peoples will have a legal impact for at least one very simple reason. The document is aspirational. This means that despite the caveats the government has issued in-line with its signing, by the simple act of signing it has signalled an intention - or an opening - for legislative change to be guided around the lines of the document. Given how poorly drafted this document appears to be, this is worrying. Furthermore, there has already been a legal impact with an iwi using the UN declaration to seek the return of Waitangi and a Maori Party MP, Hone Harawira also apparently believes there can be a legal impact in-spite of the government’s assertions otherwise. As such, there will be a legal impact.

Ironically, Maori are not a distinct people. They are no longer the indigenous people of New Zealand. Yes, they are descendants of those who were, there is Maori culture and there are also people who still identify as Maori. However, the vast majority of Maori, if not all, are also descended from other peoples, thus the distinguishing of Maori out as a distinct people is based on self-identification and the creation of otherness, and that is a specious distinction. (But then, I’m somebody who denies that race and culture are relevant identifiers to determine people’s characteristics and believes that race and culture are amorphous categories over time with no real meaning, so I would say that, wouldn’t I?) At a static point, you can identify a race and culture, but that is a large part of the problem, the static point that is being considered has no relevance in this day and age. There is no distinct race of indigenous people in New Zealand anymore, and the idea that there is has been premised on a false dichotomy.

However, as Neibuhr said in Moral Man and Immoral Society (1932):

As individuals, men believe they ought to love and serve each other and establish justice between each other. As racial, economic and national groups they take for themselves, whatever their power can command.“

This is nowhere more aptly demonstrated than by the existence of the Maori Party in New Zealand. It is worth noting the genealogy of the leaders of the Maori Party’s: Pita Sharples’ father is English and Tariana Turia’s is from the USA. They both attempt to distinguish themselves as Maori and identify as such, but that is not wholly their heritage. The reason they selectively premise and accentuate an aspect of their heritage over another is for gain. (If you disagree with this assertion, I ask you to explain what position either would be in if they hadn’t leveraged on the Maori aspect of their heritage - would they have anywhere the relevance or power that they do?) The category of Maori as a distinct group separate and different from the rest of New Zealand society is neither accurate nor useful, but as Bierce said, politics is a “strife of interests masquerading as a contest of principles. [It is the] conduct of public affairs for private advantage.”

This is not to say that some form of racial/cultural (as self-identified) targeting is a bad idea. Those of Maori descent are overrepresented in negative statistics, and that may be due somehow to their culture and the historical context going back to when there were indigenously distinct Maori ("may” being an important word). If cultural norms need to be changed, or if the government can work within the culture and target to improve outcomes, then it is logical to target it. However, that does not mean that Maori should be premised with special cultural rights and so on (as in the declaration), because as stated above, they are no longer indigenous or a distinct and separate people. They are Maori but they are also the “other”, being descended from colonists themselves and having the wider culture of the colonists as well (By colonists, I mean any other people not Maori who came to New Zealand post-Maori arrival).

I will note that it might be possible to make arguments for special treatment of American Indians and Aboriginals in Australia including premising their rights over the “other” and giving further consultation in some areas. However, I say this as these groups appear to have remained quite segregated from and to have continued to be harmed by the “other” society in many cases. One can’t make the same argument for Maori in NZ because there is no “other” society. (There are reservations in the USA and Australia with different laws, culture, etc? As noted, I have couched my words in non-definitives here as I am not wholly sure about the situation of American Indians and Australian Aboriginals and whether they could by-and-large fit these characteristics. I know Maori do not fit any.)

As shown, despite assertions otherwise, there are still likely to be legal implications from signing up to this document. Already a Maori iwi has tried to use it to make further claims and a Maori MP expects it to be used in legal situations. Furthermore, as an aspirational document, future legislation will be shaped by it. This is despite Maori being neither racially nor culturally distinct groups STILL contrasting with the “other”. This is despite Maori not being relatively segregated. This is despite the fact that Maori can no longer claim to be an indigenous group in any meaningful sense of the word. Signing the declaration may have been a politically pragmatic move in the short-run, but it is likely to lead to future division and problems for New Zealand as a nation.