The Paradox of Indigenous Rights: The Controversy around the Foreshore and the Seabed in New Zealand

Abstract

The concept of indigenous rights has become subject of international debates as well as of political discussions in nation-states where a significant proportion of the population claims indigenous status in contrast to a majority of migrant settlers. The concept of indigenous rights developed from the human rights discourse after the Second World War, the latter derived from the liberal discourse. The indigenous rights paradox arises from that shared base. Human rights are based on the notion of a universal individual, whereas claims for indigenous rights are invariably argued on behalf of collective groups. This paradox means that special rights for a group of people within a liberal-democratic nation-state, in this case on the basis of their indigeneity, must not contradict or violate the human rights of individuals as embedded in the Universal Declaration of Human Rights. This chapter is a discussion of the paradox in the context of international legal and anthropological debates about indigeneity and indigenous rights. It is illustrated with a case study about whether New Zealand Maori should be entitled to ownership of New Zealand’s beaches, or whether these should belong to the public domain of New Zealand.