A Contractual Approach to Indigenous Self-Determination in Aotearoa/New Zealand

Abstract

A CONTRACTUAL APPROACH TO INDIGENOUS SELF-DETERMINATION IN AOTEAROA/NEW ZEALAND John Buick-Constablet I. INTRODUCTION The contemporary realities of international law and politics are such that if Indigenous Peoples are to peacefully and effec- tively realise self-determination, they will most likely have to ex- ercise it within existing State structures and orders. This requires (re)establishing and (re)orienting Indigenous-State relations away from policies of assimilation and integration, and towards a partnered process of belated State-building. ' To this aim, an international legal right of self-determination for Indigenous Peoples would provide a politico-legal mechanism that legiti- mately advances Indigenous self-determination at the interna- tional level. 2 Another significant step would be to establish, at f Solicitor, Bell Gully, Barristers & Solicitors, Wellington, New Zealand. 1. The phrase belated State-building is adopted from Erica-Irene A. Daes, Some Considerations on the Right of Indigenous Peoples to Self-Determination, 3 TRANSNAT'L L. & CONTEMP. PROBS. 1, 9 (1993). With few exceptions, Indigenous Peoples were never a part of State-building. They did not have an opportunity to participate in designing the modern constitution of the States in which they live, or to share, in any meaningful way, in national decision-making .... Whatever the reason, [by law, force, language, poverty, or prejudice,] Indigenous Peoples in most countries have never been, and are not now, full partners in the political process, and lack others' ability to use democratic means to defend their fundamental rights. Id. at 8-9. Accordingly, the concept and process of belated State-building seeks to right such historical injustices by imposing obligations on States to accommodate Indigenous Peoples through constitutional means in order to share power democrat- ically. The approach of belated State-building (and that of contractualism) in this paper may be contrasted with more radical approaches to self-determination (e.g., secession and independence) that are disruptive to the existing fabric of the inter- national order of States. Id. at 9. For useful overviews and analyses of more radical approaches to self-determination, see ALLEN BUCHANAN, SECESSION: THE MORAL- ITY OF POLITICAL DIVORCE FROM FORT SUMTER TO LITHUANIA AND QUEBEC (1991) and JORRI DUURSMA, FRAGMENTATION AND THE INTERNATIONAL RELA- AND STATEHOOD (1996). 2. The international legal right of self-determination for Indigenous Peoples, as articulated in Article 3 of the Draft Declaration on the Rights of Indigenous Peo- ples, U.N. Sub-Commission on Prevention of Discrimination and Protection of Mi- TIONS OF MICRO-STATES: SELF-DETERMINATION