This article was first published by RNZ
Human rights designed to protect against discrimination are being used to block Māori authority and governance, a legal researcher says.
Auckland Law School Associate Professor Andrew Erueti’s (Ngāti Ruanui, Te Āti Haunui-a-Pāpārangi) new research, Indigenous Rights Beyond the Liberal Frame, explores how governments use the language of “equalit”, “non-discrimination” and “one law for all” to resist Māori authority and constitutional transformation.
“It’s about power, who holds it and who gets to decide what justice looks like in this country.”
Erueti told RNZ the research was a response to the “increasing talk from politicians about Māori measures being discriminatory”.
“That talk seems to be more prominent now than in the past, and I think it needs a principled answer grounded in law and human rights law. That was the prime motivator.”
‘A double-edged sword’
Human rights have long been central to Māori struggles for justice, Erueti said.
In 2004, after the Foreshore and Seabed Act extinguished customary title, Māori leaders successfully brought a case before the United Nations Committee on the Elimination of Racial Discrimination.
“Māori have used human rights to protect claims to property. It was crucial to have an independent arbiter in the name of human rights.”
The same legal principles were now being weaponised to undermine Māori authority, he said, claiming that human rights had now become a “double-edged sword”.
“While human rights are widely seen as tools for justice and fairness, the research reveals a paradox - the same principles designed to protect against discrimination are now being used to actually block Māori-led initiatives.”
With the rise of indigenous rights, Erueti said you increasingly see claims that preferential treatment, property rights and Treaty settlements discriminate against non-Māori.
“We don’t have a lot of case law in New Zealand on this kaupapa - it’s more prominent in North America - but you can see it on the horizon.
“The political rhetoric is shifting. That’s why I wanted to encourage a more informed debate about how to reconcile indigenous rights with human rights and how Māori might better protect themselves.”
At the heart of the debate is tino rangatiratanga, a foundational promise of Te Tiriti o Waitangi.
Often translated as ‘self-determination’ or ‘sovereignty’, it refers to the right of Māori to make decisions for themselves, according to their own tikanga.
“The conundrum with the treaty has always been about shared authority,” Erueti said. “The conventional view now is that political authority was to be shared - that was definitely the intention of Māori.
“The question is how to give effect to that today.”
During negotiations over the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), Māori advocates pushed for affirmation of self-determination, but New Zealand officials objected.
“They said the declaration should only recognise standard human rights like equality, applied to Māori.
“Claims to self-government or self-determination were strongly objected to,” Erueti said, adding that New Zealand had always struggled with the conception of authority.
“The concern was that Māori might use those rights to claim tribal self-governance like in the United States... so they used human rights to undermine or weaponise against claims to tino rangatiratanga.”
Why New Zealand resists
Erueti contrasted Aotearoa’s history with the United States, where constitutional traditions gave space for tribal sovereignty.
“In the US, the constitutional setting meant empowering the people and it would have been a double standard to deny First Nations that same right, so they developed the idea of nations within a nation,” he told RNZ.
“In New Zealand, under Anglo imperial rule, there was a lot less appetite for recognising jurisdiction. The pace of settlement and land acquisition meant tino rangatiratanga was pushed aside, while the focus went onto land rights.
“With the loss of land, iwi also lost capacity to exercise tino rangatiratanga. Tribal institutions were undermined.”
He said now there was resurgence of ‘By Māori, for Māori’, “where iwi and communities seek to exercise authority, provide for their own people, and re-establish that role”.
Recent debates had brought these tensions into sharp focus, he said.
Initiatives like the Te Aka Whai Ora, the Māori Health Authority, iwi-led services, and constitutional proposals such as Matike Mai and He Puapua have been criticised as separatist or race-based.
“My concern is that allegations of discrimination will increasingly be made against initiatives like the Māori Health Authority, iwi health organisations and urban Māori authorities,” Erueti said.
Tribal bodies may be shielded, he said, referring to a US case law recognising that tribes are insulated from discrimination claims, because they act as political, not racial, entities.
Urban Māori authorities are more vulnerable.
“One question is whether they can hold themselves out as tribal-like, political entities - but that risks centralising Māori authority in ways that aren’t always appropriate.
“That leads me to think the solution might lie in tikanga Māori, principles like manaakitanga, whanaungatanga, mana and utu.
“Tikanga could provide grounds to address these challenges in a way that human rights law alone doesn’t.”
Erueti’s research compares a liberal model of human rights with a decolonisation model.
The first is grounded in individual equality, but he argues it restricts Māori authority. The second sees iwi and hapū as political entities with self-governing powers.
“The decolonisation model is about tribal self-determination - tribes as political, nation-like entities exercising authority.”
Far from promoting separatism, these models are about restoring balance to the Treaty relationship," he said.
“Real justice means more than equal treatment. It means recognising the histories, relationships and political authority of indigenous peoples, and being willing to share power.”
Erueti said the clearest proof of tino rangatiratanga in action came during the pandemic.
“When Māori communities were empowered to provide vaccinations, when funding flowed directly to grassroots Māori organisations, it made a real difference. In just a couple of months, around 150,000 people were vaccinated.
“It showed that, when Māori are trusted with authority, autonomy and resources, our communities get the job done and we make our people safer.”
“That’s the lesson - trust Māori with that authority and it works.”
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By Layla Bailey-McDowell of RNZ
