A Deeper Understanding of the Constitutional Status of Māori and Their Rights Required: A Reply to Christian Riffel

In his recent article, Christian Riffel makes the important argument that New Zealand’s free trade agreements (FTAs) with the European Union and the United Kingdom constitute a form of constitutional law-making. However, in my view, Riffel misconstrues Māori rights under domestic and international law and associated context and law. He does not take sufficiently seriously the unique right of Indigenous peoples to self-determination and, in relation to Māori specifically, to tino rangatiratanga under New Zealand’s founding constitutional document, te Tiriti o Waitangi. This means that Indigenous peoples have rights to exercise public and governance power alongside a state. In this way, Indigenous peoples’ rights are fundamentally and qualitatively different from other minorities or groups in New Zealand and must not be conflated. There are several consequences that result from Riffel’s omission. For example, Riffel’s argument that Indigenous peoples’ rights under the FTAs challenge democracy does not adequately address Indigenous peoples’ rights to govern or the state’s legally questionable claim to sovereignty. I have some other less fundamental gripes. For example, Riffel’s comments on whether Māori in this field have considered the importance of the ‘Māori provisions’ is somewhat condescending.