Indigenous issues in New Zealand (Claire Charters)

Dr Charter’s presentation was focused on tino rangatiratanga and mana Motuhake for Māori under te Tiriti. Specifically, she talked about the ways in which the New Zealand State recognises Māori authority. The overarching theme was that judges have an important role in interpreting Indigenous peoples’ rights under the UN Declaration and in te Tiriti consistently with Indigenous peoples’ interpretations. This was a reference to her earlier contribution in The Promise of Law: Essays marking the retirement of Dame Sian Elias as Chief Justice of New Zealand where she wrote about the anxiety judges face recognising Māori tino rangatiratanga as undermining their own authority as judges (and that of the State). On the contrary, she argued that it would elevate judicial authority to do so.

Her three main areas of focus were on:

  1. Adjudication and interpretation of the UNDRIP, including our right to self-determination, and Indigenous women’s rights at the international level;
  2. recent recommendations for constitutional change in Aotearoa/New Zealand: based on UNDRIP and te Tiriti;
  3. How New Zealand courts, and possibly other state courts, should address Indigenous authority and sovereignty.

With respect to the first, she discussed how there was a range of interpretations of the UNDRIP and more specifically, what self-determination for Indigenous peoples meant. She put forward strongly that it was highly problematic that Indigenous peoples do not have the authority to determine what self-determination under the UNDRIP meant for them—and that this was largely an issue left to international and state adjudicators. Her argument was that these decision-makers should give great weight for Indigenous peoples’ voices before making a determination and, even possibly, top defer to the interpretation preferred by Indigenous peoples.

With respect to the second, she talked about recent constitutional reform proposals made in Aoteroa and, in particular, the recommendations of the Aotearoa UNDRIP Working Group in which she served as chair. While she acknowledged that New Zealand provides comparatively well, internationally speaking, for Māori participation in state governance, she suggested a greater focus on establishing spheres of independent Māori authority and shared spheres of governance with the Crown.

With respect to the third, she asked for the courts to transparently acknowledge that the New Zealand Crown’s claim to legitimacy is questionable, as a matter of law. She argued that it would not mean that judges should put down their pens. Instead, the judiciary might expressly justify their continued role on the basis that, as courts, they are authorised as a matter of state law to determine disputes and so long as state law is the political reality, they must continue to do so.

Reported by Don Lye and Diana Qiu