Te ao tūroa and Aotearoa’s adherence to the indigenous self-determination norm : past, present and future.
Degree GrantorUniversity of Canterbury
Degree NameMaster of Laws
In the wake of the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), self-determination has emerged as a norm applying to indigenous peoples globally. This is a positive step forward for some of the world’s most marginalised peoples and a potential means to achieve their decolonisation aspirations through economic, social and cultural development. However, many uncertainties remain as to what self-determination will provide indigenous peoples beyond the conceptual realm and in the ‘black letter’ laws that they are subject to. This thesis attempts to fill the void by considering how the norm can, and should, be operationalised in future. The framework for self-determination developed by James Anaya is adopted as the key analytical frame of reference. Given the importance of lands, waters and resources to indigenous peoples and their cultures, the narrative centres on self-determination through environment and resource management law. First, a stocktake of selfdetermination compliance is carried out by applying Anaya’s framework to various Aotearoa and foreign (Scandinavian Sami and Aboriginal Canadian) legal frameworks. These analyses reveal that there is currently widespread non-compliance with the norm in the examples studied. In spite of that, the analysis also demonstrates that there are certain legal mechanisms that go some way towards the expression of Anaya’s selfdetermination principles. These are: the operational expression of the legal personality concept in the Te Urewera and Te Awa Tupua (Whanganui River) settlements, and the balancing of interests embodied in the draft Nordic Sami convention, the Canadian duty to consult and the Waitangi Tribunal’s Ko Aotearoa Tenei report on the Wai 262 inquiry. This thesis concludes that while there is a long road head for the reclamation of indigenous self-determination, these matters potentially provide an insightful platform to begin this conversation in Aotearoa.