John Armstrong: Declaration is more bark than bite

No one in Parliament can ladle out the sarcasm with quite the abundance of acid as that which oozes from Jim Anderton on occasion.

When he is of the mood, waves of unadulterated cynicism wash out of him in a slow, matter-of-fact monotone of barely disguised contempt.

To the large pile of names that have been victim to Anderton's corrosive tongue can now be added those of John Key and Pita Sharples.

Such was the case on Tuesday when the House debated a Government statement purporting to justify the National-minority Government's backing of a United Nations declaration which the previous Labour-Anderton minority coalition had considered about as toxic as nuclear waste and would have no bar of.

The afternoon was also noteworthy for Rodney Hide's astonishing offensive on National, perhaps the most stinging criticism of an ally in Government since the introduction of MMP.

Hide had an ulterior motive - the huge pressure on him to distance Act from National - for seizing on the Government's approval of the Declaration on the Rights of Indigenous Peoples.

Anderton's contribution was probably driven solely by personal conviction and was all the more powerful for it.

He wanted to know which countries at the United Nations permanent forum on indigenous issues in New York had joined in the standing ovation for Sharples after the Minister of Maori Affairs announced New Zealand would be supporting the declaration.

Zimbabwe? Burma? Somalia? Iran? Anderton continued to list nations with truly awful track records on either human rights or indigenous rights (or both).

It turns out the only one on his list with a representative on the forum was Iran.

But Anderton's point was well made. Iran was one of a string of shameless UN members which last year had the temerity to lash New Zealand for not supporting the indigenous rights declaration.

Anderton's withering riposte was to say New Zealand was the last country to need instruction on how to conduct its race relations. It was outrageous the Prime Minister was crawling to such hypocrites. He was ashamed that Parliament was celebrating that grovelling.

If John Key could be accused of crawling to anyone, it was Sharples. The fallout from his securing of what is nothing short of a triumph for the Maori Party was bizarre to witness.

Anderton, with the Labour Party, found himself on the same conservative side of the argument as Act.

Though similarly pitted against National, the Maori Party and the Greens, Anderton disagreed with Hide on the legal standing of the declaration.

Anderton dismissed the document as a worthless non-binding expression of pious hopes without any practical effect.

Hide viewed the declaration as witches' works which would be hugely divisive and split the country asunder.

The Prime Minister lurched between emphasising the declaration would have no impact to arguing that not signing up to its aspirational goals ran contrary to New Zealand's longstanding recognition of indigenous rights.

Labour asked Key the pertinent question of why he was downplaying the declaration's relevance when New Zealand acceptance of it was contingent on a lengthy list of caveats designed to inhibit.

Anderton essentially agreed with Key, but disagreed with Labour, which, in regarding the declaration as dangerous, agreed with Act.

The politics may be complex, but are predicated on a simple question. Is the declaration an empty vessel or a vehicle for Maori separatism? The answer is closer to vessel than vehicle.

For starters, the document is a declaration - and, unlike international conventions and treaties, not binding.

Fears that efforts will be made to turn it into a convention now almost every country supports it are misplaced. Indigenous rights organisations are reluctant to go down that path because such a move would not get the required support, thus weakening the instrument.

The declaration will probably have an influence on court and Waitangi Tribunal rulings. It is said to have already done so in draft form although the Government has yet to cite specific cases.

There is precedent in the courts for using the standards laid out in similar declarations which judges have deemed that agents of the state have failed to meet.

International law and New Zealand's adherence to long-established conventions on human rights already have had an impact on judicial and quasi-judicial decisions affecting Maori.

Meanwhile, the Treaty of Waitangi has become a de facto part of New Zealand's constitution. It is thus a more potent means of seeking redress or resolution of matters concerning Maori than the indigenous rights declaration is likely to be.

New Zealand's acceptance of that declaration may thus have only an additional peripheral influence. But no one can be sure.

There have been other measures that were similarly predicted by their advocates to have little impact - notably the decision by Labour in the 1980s to backdate the date for claims to the Waitangi Tribunal to 1840.

That gesture was designed to enable Maori to seek redress for a few isolated historic grievances. It was not envisaged it would open the door to claims by Maori for vast tracts of land and resources.

What is significant about the UN declaration on indigenous rights is that while it may not be binding, its radical language makes its supposed aspirations sound more like obligations.

That is why - despite Sharples' claims to the contrary - the Government has taken the precaution of making New Zealand's support contingent on a string of caveats to neutralise the document's more inflammatory articles covering rights to self-determination, powers of veto and the reclaiming of all occupied land.

Taken alone or out of context, those articles will alarm conservative-minded Pakeha. But the declaration has to be read as a whole.

The articles generating headlines are balanced by others such as the ones ruling out self-determination as allowing the dismembering of a state.

Similarly, provisions for financial redress of indigenous peoples are acknowledgement of the rights of the non-indigenous to freehold title of land.

New Zealand's caveats - which have largely been ignored in this week's debate over the declaration's legal significance - are designed to enhance those balancing factors and thus straitjacket any inclinations towards judicial activism.

More concerned with securing the enormous symbolism inherent in the declaration, the Maori Party accepted the caveats as a cheap price for persuading National to reverse New Zealand's stance.

The caveats mean that any court or tribunal hearing a case taken solely on the grounds that the declaration has been breached will have to make its ruling within the confines of the current law, existing case history and precedent.

Failure to do so will provide strong grounds for judgments to be overturned.

Still, because of unexpected judgments from the bench on Maori matters, there will be a worry within National the declaration could generate findings which go well beyond Treaty of Waitangi rights and fracture Maori-Pakeha relations.

That probably won't happen in the short term as judicial bodies adjust to the declaration's presence.

But the politics of fear are operating here.If the declaration turns out to be a Trojan horse for Maori to extract more from the Crown, Labour will be perfectly positioned to say to National and voters "we told you so".