Price on DRIP

April 28th, 2010 at 10:26 am by David Farrar

Steven Price has a useful piece on the UN DRIP, and what impact it could have in NZ law.

Starting to get the idea that this has been overblown a bit? Right. It doesn’t provide “rights of veto” over legislation. It doesn’t put Maori on a path to self-determination or separatism. It will not influence all future law and policy practice.

Here’s what it might do. Lawyers may occasionally use it to suggest that a particular statute or statutory power should be interpreted consistently with it, but only where:

1. the statute is genuinely ambiguous, AND

2. the declaration is highly relevant to the issue, AND

3. the lawyer is able to slide around the problem that the declaration is not based on any government promises , and so does not technically raise the presumption of consistency with international obligations; AND

4. the lawyer also overlooks the government’s cautious statement to the UN about the boundaries of its support for the declaration; AND

5. there is a favourable wind.

I think that describes it fairly nicely between those who say there will be absolutely no effect at all, and those saying it is going to have a massive effect.

It’s likely to form but one strand of an argument made up of many others, or it’s likely to lose. Hardly “an invitation to existing courts to expand an existing breach into a chasm”, as Laws would have it.

If it is there, people will try to argue it from time to time. Winning is another issue.

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