New zealand law commission

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57 The term “democratic deficit” describes another aspect of treaty making which is currently attracting strong international criticism.71 Treaties can have a wide range of implications for a nation’s legal and administrative systems, economy, and individual citizens. Thus, there is concern that the practice whereby treaties are entered into by the executive, without significant parliamentary or public involvement, is undemocratic. The deficit is perceived at both the national and the international levels:

The question of the degree of public participation in the treaty-making process has been at issue since World War I. Arthur Ponsonby, a parliamentarian in the United Kingdom who served as Under Secretary of State for Foreign Affairs, attributed the cause of World War I to the existence of secret treaties. He published a book in 1915 entitled Democracy and Diplomacy (Methuen, London, 1915) in which he argued that the existing treaty making process was far less democratic than it should be.72

58 Sir Ninian Stephen, noting the potential for a “democratic deficit”, stated:

When power passes from nation-states to international agencies, the international elector risks becoming increasingly unimportant, and increasingly isolated from influence over affairs that may be of direct concern to him or her.

The decline in the extent of national sovereignty may mean just that – policy affecting the citizen may be determined at levels altogether too remote, in international forums by people largely immune to the sorts of pressures that the citizen can still exert over policy-making by Australian governments if sufficiently determined and if their determination is shared by sufficient others.73


59 Concerns over globalisation and the treaty making process expressed by the Australians as the “democratic deficit” are similarly expressed by Mäori in New Zealand. Such expressions often take the form of, in general, a loss of sovereignty or, more specifically, a need to protect täonga, intellectual and cultural property rights and cultural values. This includes a lack of control over the use of indigenous flora and fauna, the use of te reo,74 as well as Mäori words and symbols, and a lack of consultation with iwi. For Mäori, the basis of these concerns can be found in a desire to uphold the protections enshrined in the Treaty of Waitangi. Given the current treaty making process (which rarely involves Parliament) the recently increased numbers of Mäori members of Parliament can have limited effect in this regard.

60 The importance of matters of intellectual and cultural property – täonga – for Mäori in any discussion of globalisation can be seen in the following excerpt:

The international context is particularly important in intellectual property. Ideas and their exploitation are not constrained by national boundaries but, in the absence of international mechanisms, intellectual property rights can only be national. The need for international co-operation and reciprocity to provide a workable system of intellectual property was recognised more than a century ago.75

61 Further, concerning the use of intellectual property rights by indigenous peoples as a response to matters of globalisation, article 29 of the United Nations draft Declaration on the Rights of Indigenous Peoples states:

Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of flora and fauna, oral traditions, literature, designs and visual and performing arts.

62 The draft Declaration when finalised will not be binding upon states, and it should be noted that the text of the Declaration is not as yet settled. The draft Declaration has been the subject of much debate and continues to hold potential for further discussion.

63 The Mataatua Declaration on Cultural and Intellectual Property Rights, June 1993, also makes several recommendations on such property rights, to indigenous peoples, states, national and international agencies, and to the United Nations.76

64 In relation to Mäori:

Aroha Te Pareake Mead (Ngati Awa, Ngati Porou) . . . points out that the tangible and intangible aspects of property – that is, the cultural and intellectual aspects – are traditionally encompassed in Mäori culture under the concept – täonga. . . . The one concept – täonga – relates to real, personal, tangible, intangible cultural and intellectual property. It encompasses both the physical and metaphysical, perceiving each to be interdependent on, and therefore inseparable from, one another. “Misappropriation of physical indigenous täonga (assets) therefore, is wholly related to misappropriation of indigenous knowledge.”77

65 International agreements being negotiated on a wide range of matters, such as for example trade and copyright, may have an impact upon the use of indigenous flora and fauna78 and the use of te reo as brand names. Such agreements can therefore be relevant to the “full, undisturbed and exclusive” authority over täonga provided by the Treaty of Waitangi.79 One commentator has noted that

[i]n an increasingly globalised trading environment, businesses are seeking not only markets but also sources of innovation in and from the world’s indigenous peoples. Indigenous peoples, individually (by person and by people) and collectively are, not surprisingly, seeking to protect their resources and their heritages. A recent focus of their attention has been the use of intellectual property law for such protection and calls have been made to include cultural heritage protection in both the international and domestic schemes of intellectual property law.80

66 Another comments:

We should realise that the issue is control. Mäori must be able to determine the appropriateness of the use being made of our cultural heritage. To permit otherwise would be to deprive Mäori of their identity. The challenge for domestic and international communities is to acknowledge that Mäori and other indigenous peoples have their own perspective of what intellectual and cultural property are and to recognise why such täonga should be protected. . . . That Mäori seek to preserve that intellectual and cultural property . . . should be seen as something positive.81

67 Concerns have been voiced over lack of consultation with iwi in the treaty making process.82 For example, in relation to the Multilateral Agreement on Investment negotiated by the govern­ment and concerning foreign investment in New Zealand, a commentator noted that the negotiation of international agree­ments by the Crown without consulting Mäori has been happening since 1840

but most dangerously perhaps, in terms of our future well-being, in relation to the Uruguay round of GATT, the whole negotiations over intellectual property and now what have been so far secret negotiations on investment. Clearly any policy that occurs in this country is also Mäori policy and we have a right to be involved in international negotiations. . . . Particularly in relation to the fact that, if we were able to negotiate specific protections with the Crown as part of a Treaty settlement in relation to resources, and if foreign companies sought to buy up or make investments in that area, those protections could well be seen as a restraint on investment and therefore in breach of the international agreement.83

68 Further, for Mäori,

the freeing up of trade creates open access to everything from our land to our täonga, . . . we have no real information or input into the GATT process. Indeed the signing of the GATT agreement itself was done by the Crown without consultation with our people, an issue which is currently being pursued as a breach of the Treaty before the Waitangi Tribunal.84

69 The need to work through the competing claims, as a result of the internationalisation of law, at both international and domestic level is apparent.

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