Oral Submission to the Foreign Affairs, Defence and Trade Committee on the New Zealand–India Free Trade Agreement Opposing the Inclusion of UNDRIP Delivered on behalf of Democracy Action Inc.
28/05/26
Chair and Committee Members, thank you for the opportunity to speak today.
My name is Lee Short, appearing for Democracy Action. We are a non-partisan group of New Zealand citizens, founded in 2012, concerned about the erosion of democratic equality and the principle of one person, one vote, regardless of ancestry.
We support free trade that benefits all New Zealanders. However, we do not support using trade agreements to advance contentious constitutional change.
We are deeply concerned about the constitutional implications of the UNDRIP clause in the India–New Zealand Free Trade Agreement and strongly urge the Committee to recommend that Article 13.2 be removed before the agreement is ratified.
This clause, which expressly affirms the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), is unrelated to the agreement’s trade objectives and has no place in a trade treaty.
Article 13.2 does nothing to reduce tariffs, improve market access, streamline customs procedures, protect investments, or increase exports to India. Its only purpose appears ideological. Trade agreements should be about commerce between nations, not as a vehicle to stealthily rewrite domestic constitutional understandings.
India itself made this point crystal clear. They only agreed to the clause with an explicit reservation, I quote: “for India, ‘Indigenous Peoples’ is without prejudice to India’s domestic legal classification, and any recognition of indigenous status shall be in accordance with India’s law or policy.”
New Zealand includes no such reservation. We have left our Parliament, our courts, and our democratic processes exposed.
We are told that this clause has no legal effect. But that overlooks the reality that international commitments are often used by courts, tribunals, officials, and policymakers as interpretive tools. Once UNDRIP is affirmed in a treaty, it becomes harder for future governments to distance themselves from policies associated with it.
Ratifying this agreement opens the possibility that lawyers and judges could later argue that Parliament and the Government have expressly endorsed the principles of UNDRIP and that those principles should therefore help shape the development of New Zealand law and public policy.
This concern is not hypothetical. UNDRIP became the foundation for He Puapua, the report commissioned by the Ardern Government in 2019. He Puapua set out a roadmap for extensive constitutional transformation, including forms of co-governance and separate governance arrangements based on ancestry.
For many New Zealanders, this demonstrates that UNDRIP is not merely an abstract international declaration. It is already being used domestically to support major constitutional change.
We contend that New Zealand’s original objections were right.
When UNDRIP was adopted in 2007 by the UN General Assembly, New Zealand voted against it. Our then-Permanent Representative to the United Nations, Rosemary Banks, warned that key provisions were incompatible with our constitutional arrangements. She highlighted risks around:
- Ownership and control of lands and resources
- Redress and compensation.
- Effective veto powers over democratic decisions
She rightly said these ideas risked creating different classes of citizenship and undermining equal democratic participation. Those concerns are not marginal — they go to the heart of who we are as a liberal democracy.
New Zealand formerly endorsed UNDRIP in 2010, but the fundamental constitutional problems have never been resolved through open public debate or electoral consent. Now we are slipping this contested declaration into a binding treaty!
It is reasonable to ask why this wording has been included in a trade agreement at all. There is concern that the clause was inserted to advance a domestic political project under the cover of trade policy. Parliament is effectively being asked to approve a trade treaty carrying significant constitutional implications that have never been openly or honestly put before the public.
The wording used in this agreement also marks a significant departure from previous trade agreements.
The UK–New Zealand and EU–New Zealand agreements merely “noted” that the parties held positions regarding UNDRIP. That is neutral language. It acknowledges the Declaration’s existence without endorsing it.
By contrast, the India–New Zealand agreement “affirms” New Zealand’s commitment to UNDRIP. “Affirming” signals approval of, and political commitment to, the principles contained within the Declaration. That is a materially different and much stronger form of wording.
Minister McClay has attempted to reassure the public that there is no cause for concern. However, in doing so, he glosses over the practical reality that once UNDRIP is affirmed in an international treaty, courts may use it to guide the interpretation of domestic law and policy.
If the Government genuinely believes the clause carries no constitutional significance, then the obvious solution is to remove or amend it now before ratification.
Under Article 18 of the Vienna Convention on the Law of Treaties, amendments can be made between signing and ratification, provided they do not undermine the treaty’s object and purpose. This type of clarification process, commonly referred to as “legal scrubbing”, is well established in international treaty practice.
There also appears to be little reason to believe India would object. The clause is irrelevant to the agreement’s trade objectives, and removing or amending it would not affect the treaty's substance. In fact, India itself entered a reservation making clear that the UNDRIP provision does not apply to it, which further underlines how irrelevant this clause is to the agreement itself.
Our recommendation
We therefore ask the Committee to:
- Recommend the removal of Article 13.2 affirming UNDRIP from this Agreement before ratification proceeds.
- Recommend a broader review of the practice of inserting political and constitutional commitments unrelated to trade into Free Trade Agreements.
- Urge the Government to show courage and hold a genuine public debate — and ultimately a referendum — on the place of UNDRIP in New Zealand’s constitutional arrangements and the principle of equal citizenship.
Trade agreements should unite New Zealanders around shared prosperity. They should not divide us by ancestry.
Democracy Action supports stronger trade ties with India. We do not support undermining the democratic principle that all citizens are equal before the law.
Thank you