While the UN was originally created to uphold the sovereign power of existing states, developments since the 1970s have seen the UN provide a vehicle for indigenous peoples to organise collectively in favour of their rights outside of existing state authority. This follows indigenous peoples around the world lobbying the UN, calling for their country to be decolonised and for their sovereignty as a distinct people to be recognised.
The result of this is the highly controversial United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). This is the so-called aspirational and non-binding agreement that Helen Clark’s Labour Government considered too radical to support in 2007 (alongside Australia, Canada, and the United States), but John Key’s National Government unexpectedly signed in 2010.
In her address to the United Nations on 13 September 2007, Rosemary Banks, New Zealand’s Permanent Representative to the United Nations, outlined why New Zealand could not sign the Declaration. This included four provisions in UNDRIP that are fundamentally incompatible with New Zealand’s constitutional and legal arrangements, the Treaty of Waitangi, and the principle of governing for the good of all our citizens.
What is the United Nations Declaration on the Rights of Indigenous Peoples?
The Declaration on the Rights of Indigenous Peoples is a non-binding resolution passed by the United Nations in 2007. It established a universal framework of minimum standards for the survival, dignity, and well-being of the indigenous peoples of the world and it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous peoples.
While the Declaration is intended to reaffirm the rights of Indigenous peoples, it does not intend to allow for the introduction of any laws, policies or practices specific to any peoples or individuals based on their national origin, race or ethnicity (Annex). Nor does it intend to dismember or impair the political unity of sovereign States (Article 46).
Despite this, and despite Article 3 of the Treaty of Waitangi giving Māori the same rights and privileges as British subjects, in 2019 the Labour Government commissioned an “independent working group” to draft a plan to consider how our laws and policies could be adapted to become consistent with the Declaration.
The group, in their terms of reference, was asked to provide recommendations on the form and content of a Declaration Plan that comes "from the intersect between government priorities, Māori aspirations and international Indigenous rights discourse". This appears to have allowed the authors to stray from a plan based on UNDRIP, instead focussing on the revisionist's version of the Treaty of Waitangi, the failed 2016 Matike Mai report on constitutional transformation, and the Waitangi Tribunal's report on the WAI 262 claim.
Instead of following the Declaration and developing a plan that would work within the confines of our democratic system to achieve better outcomes for Māori, the group's He Puapua report sets out to introduce new constitutional arrangements that will significantly impact the lives of all New Zealanders. If the recommendations in this report are implemented, New Zealand will turn from a nation-state to an ethnostate - that is one where political, social and economic rights are based on ancestral membership criteria rather than citizenship.
He Puapua calls for constitutional change
There is no doubt He Puapua intends to introduce new constitutional arrangements. Aside from "constitution" or "constitutional" appearing 103 times in the document, the introduction to the report explains that: “He puapua” means “a break”, which usually refers to a break in the waves. Here, it refers to the breaking of the usual political and societal norms and approaches. We hope that the breaking of a wave will represent a breakthrough where Aotearoa’s constitution is rooted in te Tiriti o Waitangi and the United Nations Declaration on the Rights of Indigenous Peoples.
The report is therefore a summary of the steps needed to introduce these new constitutional arrangements by 2040 (200 years after the signing of the Treaty). Called Vision 2040, new Māori government (Rangatiratanga) is set to be introduced to sit alongside our current government (Kāwanatanga) in equal “partnership”. The “two governments” would work independently and come together over issues of “mutual” concern (page 11). The plan states that the current government (Kāwanatanga) sphere would also be required to allow for Māori involvement, however, this would not be reciprocal.
What's proposed in this report is a radical departure from the intention of UNDRIP. This report proposes to radically reshape our country along racial lines.
Even though Prime Minster Jacinda Ardern states that He Puapua is not government policy, recent actions by her Government show that this plan is being steadily implemented in a wide array of domains.
He Puapua covers every aspect of our civil and political lives
How the "two governments" will work together is intentionally unclear, leaving it to Māori to decide. However, the report gives some guidance around the kāwanatanga and rangatiratanga "spheres".
The report says that order to move towards a bicultural, mātauranga-informed state service/kāwanatanga (page 68), there needs to be: the development of partnership bodies at a governance level (also known as co-governance); the reform of the law, policies or practices relating to (among others) health, education, resource management, conservation, Māori language, arts and culture, heritage to recognise and support traditional Māori approaches in each of these areas; and to ensure that all government bodies have the capability to engage effectively with Māori, with tikanga, reo and mātauranga Māori properly valued and understood. To build capability the report says it is important to ensure all government agencies both "upskill" current public servants and "enhance" the recruitment and retention of Māori public servants (page 50).
The plan towards Māori rangatiratanga calls for the Crown to significantly enlarge the iwi/hapū/whānau estate through the "return" of Crown lands and waters, including the marine and coastal area, to Māori ownership (page 58); and for the Crown to relinquish it's "assumed" exclusive kāwanatanga authority over land, resources and taonga. The report says that all law, policy and processes should support flourishing iwi territories, and allow iwi/hapū/whānau to positively contribute towards the control, access to, and management of, all lands and resources within their rohe (region) in accordance with tikanga and mātauranga Māori. This includes the transfer of government (kāwanatanga) powers across the resource management spectrum (RMA, conservation, fisheries etc.) (page 65). The report says that as incremental step-changes are achieved, and as Māori decide they wish it – certain governance functions (e.g., education, health, social services etc) may shift from the kāwanatanga to the rangatiratanga sphere (page 11). The report suggests there are multiple streams from which financial contributions to Māori self-determination might be sourced, including, for example, levies on resource use where Māori have "a clear interest if not strong claim to ownership", such as water. The report also suggests that Māori receive royalties for the use of particular natural resources such as water, petroleum and minerals.
Below is a summary of actions the government has taken the contribute to the aspirations set out in He Puapua. The table also indicates where other parties have called on the government to make changes that are called for in the He Puapua plan.
EDUCATION: The New Zealand history curriculum is viewed as groundwork for constitutional change (pages 37-38). A draft Aotearoa New Zealand Histories Curriculum has been prepared and will be rolled out to children Years 1-9 in 2023.
Further to this, the Ministry of Education is conducting a review of the NCEA curriculum for all, with the aim of providing equal status to mātauranga Māori, the inclusion of mātauranga subjects, and the removal of Latin, Art History and Classical Studies for Level 1. This will be rolled out from 2021-2026.
HEALTH: A by-Māori for-Māori health system is advocated on page 51. A Māori Health Authority is advocated on page 87. Such an Authority was set up in May 2021 - ahead of the passing of the legislation that is supposed to establish it - the Pae Ora (Healthy Futures) Bill. The intention of the legislation is to give the Māori Health Authority power over the entire public health system and it will entrench racism in our legislation. Page 90 advocates for equitable outcomes for Māori to be included as a legislative goal in the New Zealand Public Health and Disability Act 2000. This is the main objective in the new Pae Ora (Healthy Futures) legislation that will replace this Act. The new health system will be up and running in 2022.
LAND: The report advocated for law changes that would enable Māori to control access to and management of all lands and resources within their districts (page 65).
Public Land: Page 65 advocates for a partial review of Conservation General Policy and General Policy for National Parks to better reflect section 4 of the Conservation Act 1987. This review was undertaken in 2021, with public consultation expected in 2022.
Tribal Land: The report urges an enlarged iwi/hapū/whanau estate supported by substantial gifts of Crown land (page 65). A Department of Conservation-led “Options Development Group” has recommended transferring ownership of the conservation estate to private tribal entities.
Page 65 advocates for a review of the Public Works Act, with a particular focus on returning of all Crown lands "gifted" by Māori not being used for the purpose of the original gift. In February 2022, the National Maori Authority issued a press release calling for a full inquiry into the Public Works Act, calling it a modern-day land grab.
In alignment the Government recently announced a complete review of the Conservation Act to “Modernise conservation law to better reflect today's thinking”. According to the roadmap, this is to be done by 2023.
Regional "Authority": The report encourages the setting of rahui and the implementation of tribal boundaries (page 32), as they believe public acceptance of these helps to form the argument that the public accepts that Māori has ultimate authority over the area. The government has now used Covid-19 legislation to allow iwi to set up roadblocks around the country to stop people from entering the area.
Resource Management: The report advocates for "increased Māori authority: significantly increased transfer of government powers to iwi/hapū across resource management spectrum" (page 65). The Government is currently repealing the Resource Management Act and replacing it with three new pieces of legislation to "provide proper recognition to the principles of Te Tiriti of Waitangi and provide greater recognition of te ao Māori including mātauranga Māori". The first two pieces of legislation - the Natural and Built Environments Act and the Strategic Planning Act - will be introduced to Parliament in 2022.
Biodiversity: The report recommends a joint sphere of management and governance of all resources. This policy is being promoted in the Government’s new Te Mana o te Taiao - Biodiversity Strategy. The Government is now requiring all Ministers to review those aspects of their portfolios that relate to the protection and promotion of biodiversity or that pose risks to biodiversity and ensure that the relevant Government agencies are engaged in implementing these strategies.
The National Policy Statement on Indigenous Biodiversity requires local authorities to review all public, private and Māori land in their area to identify “significant natural areas”, and to use scientific monitoring methods and Māori customary knowledge, traditional knowledge or intergenerational knowledge methods equally. This policy statement allows Māori, working alongside councils, to identify these areas and compel landowners to restore and enhance the designated areas. This was targeted to be introduced in 2021, however, the release has been held back pending further consultation with Māori.
Foreshore and seabed: He Puapua proposes the marine and coastal area to be given to Māori groups, see page 65. This is already underway, under the Marine and Coastal Area (Takutai Moana) Act, see here and here. Based on rulings to date, it is expected that most of the coast of New Zealand will be in tribal hands, although it might take another 30 years to settle all claims.
RESOURCES: Page 63 deals with "resources", outlining the rights Māori should have over flora; fauna; aquatic life; minerals and petroleum; rivers; water; and air.
Flora: The government is currently reviewing the Plant Varieties Act to include special conditions around ‘indigenous species’ and ‘non-indigenous species of significance’. This includes a power to refuse a PVR (an exclusive right to exploit protected variety) if "kaitiaki relationships would be negatively affected". In order to monitor this, the changes include the establishment of a Māori advisory committee to sit alongside the Commissioner to assist in determining the impact of a PVR grant on kaitiaki relationships. This was meant to be done by the end of 2021, however the legislation appears to be held up.
Water: The year 2025 is the deadline for Māori to be awarded the title to fresh water, according to page 66. Page 65 advocates for the entrenchment of joint decision-making with respect to all lands and waters. The current Three Waters reforms give iwi groups 50% control over the infrastructure and management of our three waters assets throughout New Zealand. The reforms are to be completed by 2024.
Page 64 advocates for a Te Mana o te Wai Commission with Māori co-governance. Taumata Arowai and a Māori Advisory Board or "Rōpū Māori" (soon to be upgraded from an advisory board to a partnership) - who's key objective is to give effect to Te Mana o te Wai - was launched in 2021.
Page 64 advocates for Māori to receive royalties for the use of particular natural resources such as water, petroleum and minerals. This is also repeated on page 31. Within the Three Waters reforms, the Government has not ruled out the introduction of water royalties for Māori at a later stage.
LANGUAGE: The plan calls for additional steps to ensure that the Māori language will be flourishing and its use widespread, see page 75. This is well underway.
Page 75 also calls for te reo Māori to be made a compulsory curriculum subject in primary education by 2035. On Waitangi Day 2022, Race Relations Commissioner Meng Foon announced he had written to Chris Hipkins in 2021 calling for the government to introduce te Reo as a compulsory subject within 5 years.
GOVERNANCE: As well as the introduction of Māori government (rangatiratanga) to sit alongside the current government (kāwanatanga), the report calls for the consideration of a Tiriti body or court to regulate jurisdictional boundaries between the two governments (page 11).
The report calls for a Māori constitutional convention as per Matike Mai’s recommendation to be held in 2021 to further the discussion as to how Māori wish to exercise rangatiratanga at the constitutional level, and develop an engagement strategy (page 38). This convention was held on 6 February 2021. You can view the video in two parts here and here.
Central Government: He Puapua wants the Māori seats in Parliament entrenched, see page 46. There has already been an attempt to entrench the Māori seats, but the bill was withdrawn due to lack of support by previous governments. This is likely to be re-introduced to Parliament within the current term of government.
The report advocates for the Crown to create joint Ministers and Associate Ministers that focus on the Māori dimension of the relevant Ministry (page 89). In the current term of Government we have an Associate Minister of Health (Māori Health) - Peeni Henare, Associate Minister of Housing (Māori Housing) - Peeni Henare, Associate Minister of Education (Māori Education) - Kelvin Davis and the Parliamentary Under Secretary to the Minister for Trade and Export Growth (Māori Trade) - Rino Tirikatene.
Local Government: The plan also advocates changing both the Local Government Act 2002 and the Local Electoral Act 2001 to enable the creation of Māori wards in local councils, see page 47. This was done in early 2021.
The Government is currently undertaking a Review into the Future of Local Government. The Interim Report released in 2021, states that they are actually undertaking a review of "local governance", in order to "consider how New Zealand’s system of local democracy and governance will need to evolve over the next 30 years in order to improve the wellbeing of New Zealanders, and actively embody the Treaty partnership". The draft recommendations are due in 2022.
LAW: Page 27 calls for tikanga Māori to be functioning and applicable across Aotearoa under Māori authority and, where appropriate, under Crown authority by 2040.
Defined as "Māori customary values and practices", tikanga made its way into the Marine and Coastal Area Act in 2011, delivering huge consequences 10 years later. Early in 2021 the High Court delivered a ‘bombshell’ ruling. Instead of claimants having to satisfy the two tests under the Marine and Coastal Area Act, namely the common law property rights test of holding the area exclusively and continuously since 1840, and holding it according to tikanga, they ruled that tikanga trumps the common law requirement of exclusivity. This is a far-reaching decision, as it means that tikanga has been elevated above our common law. The current Attorney General declined to appeal this landmark ruling.
Further to this, the government has asked the New Zealand Law Commission to review the role of tikanga and te ao Māori concepts in law. The initial scoping work has been commenced, however, no date for the completed review has been announced.
Page 47 suggests and update the Bill of Rights Act to direct the courts to interpret legislation consistently with te Tiriti, and to make declarations of inconsistency where that is not possible (in order to trigger a parliamentary process for consideration). This is currently making its way through Parliament.
Courts: Page 86 calls for the establishment of more therapeutic and specialist courts and to normalise these approaches in the mainstream court process. It also calls for a reform of the family court and care and protection process, including establishing a tikanga Māori focused pilot. Page 87 calls for the establishment of a separate Māori court system by 2040.
Page 91 calls for a review of s 27 of the Sentencing Act 2002 with a view to expand the use of cultural reports beyond sentencing, allow Judges to direct the provision of reports and increase funding. The number of and cost of these reports has ballooned to $3.3 million over the past few years.
These examples show some of the steps He Puapua says are necessary to build to the ultimate goal - a two-system governance of New Zealand.
What's wrong with designing a system in order to provide equity for Māori?
He Puapua is not about achieving equality or equity of outcomes between Māori and other population groups. The plan specifically says on page 79:
"In the context of Indigenous rights, the concept of “special measures” has its limitations. Measures directed towards Māori should not be framed as "special measures" because they are only justified for as long as is necessary to attain equality for disadvantaged groups. In contrast, Indigenous peoples' rights are permanent and are thus required for reasons beyond simply achieving parity between citizens."
He Puapua is not Government policy, it's just a report by some academics, right?
It's hard to say what will happen next with He Puapua. What we do know is that Willie Jackson is currently consulting with select Maori groups to develop a Declaration Plan. What they haven't committed to is how He Puapua is being used as part of this consultation. However you cannot unring a bell. The report is out there, it will be used to form the feedback received as part of the consultation process.
According to a December 2021 report from Te Puni Kōkiri (the government’s principal policy advisor on Māori wellbeing and development and the department leading this activity), the current timings to develop a Declaration Plan are:
- The first stage of the process involves targeted engagement with interested iwi, hapū, whānau and Māori organisations. This stage of engagement is seeking views on the actions that should be included in a draft Declaration Plan, and the process for drafting the plan in partnership. Engagement with interested groups will take place from October 2021 – early February 2022.
- A Draft Declaration Plan will be written using that feedback, and further public engagement will take place from June-October 2022, to enable whānau, hapū, iwi, organisations and communities to have a say on the Declaration Plan before it is finalised. Where possible, targeted engagement and the development of a draft Declaration plan will seek a coordinated approach to ensure proposed actions that relate to other Government initiatives (such as Wai 262, RMA and water reforms, eliminating racism and initiatives in the criminal justice sector) align with the aspirations of the Declaration and strengthen rangatiratanga.
- The final Declaration Plan will be released in February 2023.
What can we do?
- Share information with friends and family. Don’t let the Government and the voices of radical activists be the dominant narrative.
- Speak out. We have a lot to be proud of.
- Celebrate being the first country to introduce universal adult suffrage. This makes us one of the longest-lasting democracies in the world.
- Share the good things about all the cultures that are represented in New Zealand.
- Keep up to date via our newsletters, register here.
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Latest updates for this campaign
A conference to discuss the progress of formal constitutional recognition of indigenous peoples in their respective countries was held at the University of Auckland on 21-23 November. The Constitutional Kōrero 2022: Transforming New Zealand’s Constitution conference brought together indigenous lawyers and academics from New Zealand, the Pacific, North America, Australia, Asia, Latin America, Greenland, Scandinavia and Africa.Continue reading
Towards the end of 2022 Democracy Action commissioned Professor James Allan, of the University of Queensland, to produce an analysis of the He Puapua Report - a report that calls for highly controversial constitutional change. Specifically, we sought Professor Allan’s opinion on the implications for New Zealand’s liberal democracy in adopting recommendations made in He Puapua, and what this would mean for the future of New Zealand.Continue reading
The next step in the process to develop a plan for New Zealand to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was kicked off last month with a targeted engagement strategy aimed at ensuring as many Māori voices as possible get to share their views on what should be included in a Declaration plan.Continue reading