Abstract
Introduction
As Russell and Buklijas state in their introduction, there is a belief here that Indigenous peoples’ rights are undemocratic because they privilege the interests of some individuals and groups over others, contrary to the fundamental principle of one person, one vote. 1 In this paper, I explain ways in which, in fact, Indigenous peoples’ rights are consistent with democratic and other liberal ideas, such as self-determination.
I hasten to add that I do not think Māori need to justify their legitimate rights using theories of the coloniser. However, and this is what I hope to add to this kōrero, they can be instrumental in illustrating that recognition of our rights is also required under the colonisers’ own jurisprudence. Moreover, some liberal ideas, such as freedom from external control, have synergies with tikanga Māori despite their very distinct genesis.
My perspective is informed by attempts to respond in an accessible way to so-called “democratic objections” to Indigenous peoples’ rights in the public domain as a constitutional and international lawyer rather than a political theorist.
The imposition of democracy conflicts with the liberal ideals on which it is based
There are three objections to the “one person, one vote” democratic ideal: no consent, illegitimacy and illegality. All are grounded in liberal theory, which also grounds the justifications for democratic rule in Western liberal democratic states. The lack of hapū consent to settler government is an objection independent of illegitimacy and legality, but is also a reason why that government is illegitimate and illegal.
Liberalism requires consent
A core constitutive element of liberalism is that our liberty should not be constrained unless we give consent or there is valid justification for it. Both democracy and self-determination stem from liberalism in that they enhance liberty and equality by allowing people to consent to and self-determine their government. However, if some people in a polity are regulated by an authority legitimated by consent or good reason, and others are also regulated by that same authority, but without consent or good reason, inequality between peoples results (Roughan, 2023: 1.30; Raz, 1988: 89, 99–100).
Applying liberal ideals of liberty and equality to Aotearoa|New Zealand, and the concepts of democracy and self-determination that follow, the crucial point is that hapū representatives who signed te Tiriti o Waitangi expressly did not consent to the imposition of Crown governance over them. They agreed to Crown authority over settlers and that hapū would retain their tino rangatiratanga, a form of self-determination (Fletcher, 2014). In contrast, settlers came to Aotearoa|New Zealand under the umbrella of Crown law and as British subjects.
Fast forward to today, Māori have yet to consent to Crown authority and continue to be subject to a colonial system with no roots in their own world view. This creates a structural inequality and an unjustified limitation on Māori liberty. I stress, too, that participation in that system does not amount to consent to the authority of that system but, rather, reflects a sense of futility to challenge the power of the Crown. In other words, the imposition of Crown authority without consent is fundamentally illiberal.
The establishment of democratic rule in Aotearoa|New Zealand does not remedy this basic problem, despite an assumption in the public domain that it might, as implied in this symposium in the chapter “Te Tiriti o Waitangi: a partnership between races or commonwealth for democratic innovation”, when the author writes that democracy was co-opted to support colonial expansion [page range should be inserted to refer to O’Sullivan's contribution below]. More specifically, as outlined below, Aotearoa|New Zealand’s democracy is structurally biased against Māori, continuing to offend its supposed grounding in equality.
Consequently, Māori do not exercise self-determination in the way that those for whom the practice of democracy is justified, that is, settlers. For Māori, the imposition of democratic rule over Māori conflicts with the very liberal ideals on which it is based.
The illegitimacy of democratic governance
A related but distinct objection, also based in the liberal requirement of consent to external regulation, is legitimacy.
A settler government must first justify its right to regulate a territory inhabited by Indigenous peoples before it can claim legitimacy, irrespective of whether the regulatory system is democratic.
In Aotearoa|New Zealand, He Whakaputanga and te Tiriti o Waitangi would be the basis on which legitimate governance could be justified as they constitute the original settlement between Māori and the Crown. They enabled the Crown to establish regulatory authority and guaranteed Maori tino rangatiratanga, a form of self-determination.
Since then, contrary to that agreement, the Crown has claimed absolute and sole authority to regulate, and Māori have been unable to exercise tino rangatiratanga. Nonetheless, the Crown’s ongoing legitimacy continues to depend on respect for the terms of the original settlement. Brookfield (2013), for example, might argue that sovereignty was acquired via revolution. However, even if valid, that argument does not remedy the lack of legitimacy that flows from the breach of Aotearoa|New Zealand’s founding constitutional treaty.
An example of basic state compliance with the “original settlement” is the United States. Federal and state governance in the United States is restricted by American Indians’ ongoing rights to practice their inherent, pre-colonisation sovereignty, as enshrined in United States constitutional law (Cherokee Nation v Georgia, 1831; Johnson v M'Intosh, 1823; Worcester v Georgia, 1832). Moreover, treaties between American Indians and the United States are expressly protected under the Constitution of the United States and enjoy equal status as federal legislation. Some treaties include recognition of ongoing American Indian nations’ authority to regulate their territories and have been held to override states’ competing claims to authority to regulate those territories (McGirt v Oklahoma, 2020: 10). In practice, American Indian nations continue to regulate themselves under their own institutions and practices of governance, subject to some limitations.
Illegality of the state
Under the rule of law – a principle that is designed to protect against the arbitrary use of power – a settler state must meet requisite legal tests before it can claim a legal right to regulate a territory. A legal right is different from a claim based in legitimacy. A legal claim is grounded in law while legitimacy is based in political justice and reason.
The Crown did not satisfy the legal tests to establish a legal right to regulate Aotearoa|New Zealand under international law on the law of treaties: Māori did not consent to Crown regulation of them; the Crown has never claimed the legal right to regulate under the rules of conquest; and a territory must be “terra nullius” before a settler state can claim a legal right under the doctrine of discovery. Aotearoa|New Zealand was occupied by iwi Māori, and their presence and governance of these territories was recognised in He Whakaputanga and te Tiriti o Waitangi.
Aotearoa|New Zealand’s weak protection of Indigenous peoples’ self-determination
It is not uncommon – in Aotearoa|New Zealand and internationally – to hear that Aotearoa|New Zealand is a world leader in upholding Indigenous peoples’ rights, including by elected officials (Tyson, 2023). This is a myth.
Aotearoa|New Zealand’s failure to recognise hapū self-determination, including an express policy to not entertain claims to tino rangatiratanga in Treaty settlements, sits in stark relief to the United States, as mentioned above.
In Canada, contemporary settlements between First Nations and governments include provisions to enable and recognise their authority to regulate their territories and peoples. The Canadian Constitution Act 1982 includes protections of Aboriginal rights and treaties, which take precedence over all federal and provincial legislation inconsistent with those rights. Recent case law supports First Nations’ self-determination (Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024), and the federal and British Columbian governments have passed legislation to realise the United Nations Declaration on the Rights of Indigenous Peoples (Declaration on the Rights of Indigenous Peoples Act RSBC, 2019: c.44; United Nations Declaration on the Rights of Indigenous Peoples Act RSC, 2021: c.14).
The Scandinavian states of Norway, Finland and Sweden have established Saami Parliaments, which influence law-making in Saami territories (Josefsen and Saglie, 2024: 110).
These examples illustrate that in comparable Western liberal states, the relationship between democracy and Indigenous peoples’ self-determination is realised differently from the “one person, one vote” approach. While the specific contexts vary, polity democracy and Indigenous peoples’ self-determination sit side-by-side in the constitutional and legal systems of those jurisdictions.
Without any protections for human rights, Treaty rights and minority rights, the risk of the “tyranny of the majority” is considerable when those same rights are inconsistent with the majority’s interests. A well-known example in Aotearoa|New Zealand is the enactment of the Foreshore and Seabed Act 2004. This is why most other Western liberal democratic states have enshrined rights in written constitutions so they cannot be easily overturned.
Indigenous peoples’ self-determination results in better outcomes and greater equity
The imposition of a version of democracy based on “one person, one vote” creates structural inequalities.
Evidence over 50 years of research globally, conducted under the “Harvard Project for Indigenous Governance and Development”, including in-depth empirical economic, social, cultural and legal analysis, has illustrated that when Indigenous peoples: … make their own decisions about what development approaches to take, they consistently out-perform external decision makers—on matters as diverse as governmental form, natural resource management, economic development, health care and social service provision. (Harvard Kennedy School, 2024)
Further, economic and social wellbeing has a positive impact on the extent to which individuals participate in democratic processes (Anderson et al., 2021: 3; Te Kawa Mataaho | Public Service Commission, 2022: 29). In other words, the more Indigenous peoples exercise self-determination, as required under international law and policy, the better the democratic process becomes, including under the “one person, one vote” understanding of best practice democracy.
Deliberative democracy methods better realise the “will of the people”
Around the world, democracy is being imagined and realised in new ways, beyond the basic “one person, one vote” model, on the understanding that simple voting is an impoverished way to realise democratic outcomes.
Contemporary thinking favours collaborative, inclusive and consensual models, called deliberative democracy. As the name suggests, processes of deliberation, negotiation and consensus-seeking are prioritised, including through consultation, opportunities for engagement at the national and local levels and information sharing.
Deliberative democratic approaches are more inclusive and democratic. Importantly, they support a deeper sense of attachment and unity within diverse polities, including colonial settler states where Indigenous peoples and other minorities might continue to suffer from the impact of majoritarian-driven politics.
Mexico’s legal requirements for consultation by the state with Indigenous peoples, in line with international legal requirements, is a particularly interesting model of deliberative democracy (Constitution of Mexico 2024: Article 2, Section A Subsection). In practice, Indigenous peoples and their authorities are invited to participate in the drafting of laws, policies, plans and, recently, constitutional reforms in meaningful ways. An important example of this relates to the drafting of so-called general law to give effect to 2024 amendments to the Article 2 of the Constitution of Mexico. The state is about to embark on extensive consultation in 70 regional assemblies across the country, programmed for mid-2025, with regional Indigenous peoples’ assemblies representing all Indigenous peoples in Mexico, including the Afro-Mexican people.
Conclusion
The rights of Indigenous peoples to self-determination strengthens, rather than threatens democracy. The “one person, one vote” view of a democracy, while intuitively appealing, conflicts with the very liberal ideals it is based upon and creates structural inequalities in colonial settler states such as Aotearoa|New Zealand’s.
Aotearoa|New Zealand’s ongoing failure to recognise Māori self-determination tarnishes the image often presented by the government of being a world leader in Indigenous peoples’ rights. An alternative model of deliberative democracy would remedy numerous democratic deficits leading to better, equitable outcomes for Indigenous peoples, enhancing democratic participation. In this way, democracy and Indigenous self-determination can be mutually reinforcing.