Are any of the other Canadians in New Zealand seeing similarities between New Zealand signing on to the UN Declaration on the Rights of Indigenous People and Canada's constitutional wranglings over Quebec as a "Distinct Society"? In the Canadian case, folks inside Quebec had the impression that being granted "distinct society" would give them everything they ever hoped for (at least during the Meech negotiations) while folks outside Quebec were told it "means dick". Here, Key says signing the Declaration is meaningless; Hone says it's powerful.
If this starts working its way into judicial and regulatory decisions, Parliament would have to come in and explicitly state that it was the intention of Parliament that the Declaration is a legal nullity; Parliament would be unlikely to do that as it would be a pretty big slap to Maori.
Let's hope that Farrar is right that is will have no such effect, because I don't see any easy path back if it does.
No surprise that National violated its "no surprises" agreement with ACT (ACT found out about it on the news like everybody else); Maori can credibly go into coalition with Labour while ACT can't unless it takes a much stronger stand on civil liberties.
It's not as bad as the "distinct society" wrangle in Canada, but the parallels are there.
ReplyDeleteThe "distinct society" clause, that Canadians outside of Canada were told was just a statement of fact not a guide to judicial decisions, was in fact a proposed interpretative clause to be added to the preamble of the Canadian consitution, thus requiring Canadian judges to have recourse to it in making decisions. A closer parallel in New Zealand might be the writing of undefined "principles of the Treaty of Waitangi" into legislation and giving the judiciary carte blanche to interpret that as they see fit.
That said, I would feel a lot more confortable if there were a legislative directive to the judiciary that our signing on to international declarations has, in the absence of specific legislative direction, no legal force for judicial interpretations.
Seamus, why? I can't see why that would even be needed. the UN declaration has a lesser status than the Treaty of Waitangi (certainly its principles), the UN Convention on the Rights of the Child - and probably a lesser influence on judicial decisions than the Waitangi Tribunal.
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ReplyDeleteI hope you are right that it wouldn't be needed. In a sane world it certainly wouldn't be, but I always worry about the possibility of judges reverse engineering from an outcome that they want to a specious legal basis for a judgement. The possibility of this is not as great as with the treaty principles written into legislation or the equally ambiguous "distinct society" clause potentially written into the Canadian constitution, but the worry is still there.