To: Foreign Affairs, Defence and Trade Committee

Submitted by: Democracy Action Inc.

PO Box 87141

Meadowbank 1742 

Date 17 July 2026

Introduction

Democracy Action is a non-partisan incorporated society that advocates for equal citizenship, democratic accountability, and transparent government. It was established in 2012 and has members throughout New Zealand.

Our central principles include:

• Equality before the law and equal political rights for all New Zealanders.
• Government accountability and transparency.
• Opposition to governance arrangements or legislation that create different political rights based on ancestry or ethnicity.

Democracy Action welcomes the opportunity to submit on the India Free Trade Agreement Legislation Amendment Bill.

We support the objective of strengthening New Zealand's trade relationship with India and do not oppose the Free Trade Agreement itself. Our submission is directed solely to the legal and constitutional implications arising from the Agreement's affirmation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

While the Bill principally amends New Zealand's customs and tariff legislation to implement the Agreement, it also provides Parliament with an important opportunity to ensure that implementation of the Agreement does not inadvertently alter the status of UNDRIP within New Zealand law.

The Issue

The New Zealand–India Free Trade Agreement expressly affirms the United Nations Declaration on the Rights of Indigenous Peoples.

Although this affirmation does not, of itself, incorporate UNDRIP into New Zealand law, the language used is nevertheless significant. In legal terms, to affirm an international declaration is to acknowledge and accept it.

New Zealand courts have recognised that international treaties and declarations may, in appropriate circumstances, assist in interpreting legislation or reviewing the exercise of statutory powers. Consequently, the inclusion of an affirmation of UNDRIP in an international agreement may strengthen its influence in future judicial, administrative, or policy decision-making, even though Parliament has never incorporated the declaration into domestic law.

Inconsistency with Current Government Policy

The Coalition Government decided in 2024 to discontinue efforts to implement UNDRIP domestically.

In Democracy Action's view, it is inconsistent for New Zealand simultaneously to implement an international agreement affirming UNDRIP without making it clear that the affirmation has no legal effect within New Zealand.

If Parliament intends that implementation of the Free Trade Agreement should not alter the legal or constitutional position of UNDRIP, that intention should be expressly stated in the implementing legislation.

A Practical Legislative Solution

Democracy Action proposes a straightforward legislative solution that would preserve both the Free Trade Agreement and Parliament's constitutional intentions.

The National Interest Analysis accompanying the Agreement confirms that implementing legislation is required before the Agreement can take effect domestically. Parliament can therefore clarify the legal consequences of the Agreement's affirmation of UNDRIP.

Recommendations

Democracy Action requests that the Committee recommend the inclusion of provisions in the implementing legislation making it clear that the FTA’s affirmation of UNDRIP:

• does not give UNDRIP the force of law in New Zealand;
• does not give UNDRIP presumptive weight when interpreting legislation;
• does not make UNDRIP a relevant consideration in legal or administrative decision-making unless expressly authorised by Parliament;
• does not create any new legal rights, obligations, or legitimate expectations under New Zealand law; and
• does not otherwise alter New Zealand's constitutional or legal arrangements.

We also support the inclusion of an explicit provision stating that, for the purposes of New Zealand law, policy, and administrative practice, UNDRIP is not to be treated as having legal effect.

Such provisions would provide certainty to courts, public authorities, and the public while preserving Parliament's constitutional role as the sole body responsible for determining the legal status of international instruments within New Zealand.

Conclusion

Democracy Action supports the New Zealand–India Free Trade Agreement and the economic benefits it is intended to deliver.

However, Parliament should ensure that implementation of the Agreement does not unintentionally enhance the legal status or constitutional influence of UNDRIP within New Zealand. Including appropriate statutory safeguards would provide certainty, uphold parliamentary sovereignty, and ensure that any future change to the legal status of UNDRIP occurs only through the explicit decision of Parliament.

Thank you for considering this submission.