Submission to the Foreign Affairs, Defence and Trade Committee on the New Zealand–India Free Trade Agreement
Opposing the inclusion of UNDRIP in the Agreement
Submitted by Democracy Action Inc.
16 May 2026
INTRODUCTION
Democracy Action was established in 2012 in Auckland by a group of citizens concerned about the erosion of democratic principles and equality of citizenship. We have members throughout New Zealand. Our website is: http://www.democracyaction.org.nz/.
Democracy Action opposes the inclusion of Article 13.2 of the New Zealand–India Free Trade Agreement (FTA), which expressly affirms the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
Democracy Action is committed to the principles of equal citizenship, parliamentary democracy, transparency in government, and constitutional accountability. We support free trade agreements that strengthen New Zealand’s economic prosperity and international relationships. However, we strongly oppose using trade agreements as vehicles for advancing contentious constitutional or ideological objectives unrelated to trade.
The inclusion of UNDRIP in this agreement raises serious constitutional and democratic concerns that extend far beyond the proper scope of a Free Trade Agreement.
The inclusion of UNDRIP in a trade agreement is inappropriate, unnecessary, and constitutionally significant. The clause has no direct connection to trade liberalisation, market access, customs arrangements, tariffs, investment protections, or commercial cooperation between New Zealand and India. Instead, it inserts a highly contested political and constitutional concept into an agreement that should be confined to trade matters.
We urge the Committee to recommend that the Government remove the UNDRIP affirmation from the agreement before ratification. If this does not occur, Parliament should decline to endorse the agreement in its current form.
KEY POINTS
The inclusion of UNDRIP in the New Zealand–India FTA raises serious concerns for the following reasons:
- UNDRIP is a political and constitutional declaration, not a trade instrument.
- Article 13.2 serves no identifiable commercial purpose.
- India itself insisted on an express reservation protecting its domestic constitutional position.
- New Zealand originally opposed UNDRIP in 2007 because aspects of it are incompatible with democratic equality, property rights, and constitutional arrangements.
- The inclusion of UNDRIP in a binding international treaty risks strengthening arguments that UNDRIP should influence judicial interpretation, administrative decision-making, and constitutional development within New Zealand.
- The clause may be used domestically to advance constitutional changes that have never been openly endorsed by the electorate.
- Constitutional matters of this magnitude should be debated transparently and decided democratically, not advanced indirectly through trade agreements.
THE RELEVANT CLAUSE
Article 13.2 states:
- “The Parties, subject to their respective reservations, affirm the following:
(a). The United Nations Declaration on the Rights of Indigenous Peoples, adopted in New York on 13 September 2007 and their respective positions made on that Declaration.”
India’s reservation states:
“The Parties agree that 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.”
India, therefore, agreed to the wording only while expressly preserving its own constitutional and legal position.
New Zealand has included no equivalent reservation.
UNDRIP was originally rejected by New Zealand for compelling reasons.
When the United Nations General Assembly adopted UNDRIP in 2007, New Zealand voted against it.
New Zealand’s Permanent Representative to the United Nations, Rosemary Banks, explained that several provisions were fundamentally incompatible with New Zealand’s constitutional and democratic arrangements.
The concerns identified included:
- Provisions relating to ownership and control of lands and resources;
- Provisions concerning redress and compensation claims;
- Provisions interpreted as conferring a form of veto power over democratic decision-making.
Banks warned that the declaration:
- Risked creating different classes of citizenship;
- Undermined the principle of equal democratic participation;
- Failed to account for existing lawful property ownership;
- Was inconsistent with New Zealand’s constitutional framework.
These objections are not marginal or technical. They go to the heart of democratic governance and equality before the law.
Although New Zealand reversed its position in 2010, the original constitutional concerns have never been properly resolved or openly debated with the public.
The clause has no legitimate trade purpose.
The central purpose of a free trade agreement is to facilitate trade and economic cooperation.
Clause 13.2 does not:
- Improve market access;
- Reduce trade barriers;
- Enhance commercial certainty;
- Facilitate exports;
- Improve customs efficiency;
- Create economic opportunities.
The inclusion of UNDRIP, therefore, appears to serve a political rather than commercial objective.
INDIA’S RESERVATION HIGHLIGHTS THE PROBLEM
India’s insistence on a reservation is highly significant.
India expressly protected its domestic legal position by clarifying that any recognition of indigenous status would occur only in accordance with India’s own laws and policies.
This demonstrates that India understood the political and constitutional sensitivity of the issue.
New Zealand has included no similar reservation protecting:
- Parliamentary sovereignty;
- Equal citizenship;
- Existing constitutional arrangements;
- Democratic decision-making.
The absence of such protections creates uncertainty about how the clause may be interpreted or invoked domestically in the future.
RISK OF JUDICIAL AND ADMINISTRATIVE EXPANSION
Although UNDRIP itself is formally non-binding, its incorporation into a ratified treaty changes its status politically and legally.
Under international law, treaties create binding obligations between states.
Article 26 of the Vienna Convention on the Law of Treaties provides:
“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”
New Zealand courts have increasingly referred to international instruments when interpreting statutes and developing the common law.
Former Supreme Court Justice Susan Glazebrook has publicly argued that UNDRIP is becoming increasingly embedded within New Zealand’s legal framework and may properly influence judicial interpretation.
Her published comments indicate that courts may treat repeated government endorsements of UNDRIP as evidence of state commitment, even where the declaration itself is not directly incorporated into legislation.
Parliamentary approval of this FTA may therefore be treated as:
- Further endorsement of UNDRIP;
- Evidence of legislative acceptance;
- Support for interpreting statutes consistently with UNDRIP principles.
Whether one supports or opposes UNDRIP, this possibility is constitutionally significant and should be taken very seriously.
Constitutional change should occur transparently.
Constitutional change should occur openly and democratically.
If the Government wishes to embed UNDRIP principles more deeply into New Zealand’s constitutional framework, it should:
- Explain the proposal clearly;
- Allow full public debate;
- Seek an explicit democratic mandate.
Trade agreements are not an appropriate mechanism for advancing constitutional or ideological objectives unrelated to trade.
Significant constitutional questions should never be advanced indirectly through obscure treaty clauses that receive limited public scrutiny.
Recommendations
This submission recommends that the Foreign Affairs, Defence and Trade Committee:
- Recommend removal of Article 13.2(a) affirming UNDRIP from the New Zealand–India FTA;
- Recommend a broader parliamentary review of the use of trade agreements to incorporate political and constitutional commitments unrelated to trade.
Thank you for considering this submission.
Susan Short
Secretary
Democracy Action Inc.