Tue Nov 18

how a new citizenship category could avoid a trap for Indigenous children born overseas

Written by: Sarah-Kay Coulter, Lecturer in Indigenous Studies, The University of Melbourne

Outdated laws mean Indigenous children in Aotearoa New Zealand and Australia can currently be denied citizenship ^[1] on the lands of their ancestors.

The issue came to the fore last month, when the Waitangi Tribunal ^[2] in New Zealand considered an urgent claim, challenging whether the Crown has met Treaty of Waitangi obligations to protect the citizenship rights of Māori children born overseas.

The claimant John Bryers Ruddock is affiliated with Ngāpuhi. He was born in Australia but became a New Zealand citizen by descent through his Māori mother. However, despite their tribal connections, his children are not New Zealand citizens under the current law ^[3] because they were born in the United States.

The claimants argued that whakapapa (genealogy) is a taonga, a treasured right the Crown must actively safeguard.

The tribunal found the Crown breached the Treaty principles of partnership, active protection, rangatiratanga, good government and equal treatment.

The case highlights how Māori families born offshore face exclusion from New Zealand citizenship, even when genealogical and iwi (tribal) affiliations affirm identity and belonging. The findings suggest that citizenship should be reconsidered in a contemporary context.

New Zealand and Australia currently both define citizenship through narrow, Western concepts of nationhood, determined by birth within a country or descent from a citizen.

But both countries have signed the Australia Aotearoa New Zealand Indigenous Collaboration Arrangement (ICA ^[4]) five years ago. This provides an opportunity to remedy this ongoing injustice by establishing a new Indigenous citizenship class.

Current laws fail to acknowledge Indigenous ways of understanding belonging, identity and place. For Indigenous peoples, citizenship is not merely a question of legal status. Rather, it is about relationships to land, non-human kin, to community and the ancestral connections that bind generations together.

Existing laws in both countries fail to recognise complexities of dispossession, forced removal and encouragement to move away from tribal lands. As a result, Indigenous children whose parents or grandparents were not born in their ancestral homelands can be refused citizenship.

In the case of Aotearoa New Zealand, if both a parent and child were not born on New Zealand soil, citizenship is not guaranteed. There is also a risk of being classified as overstayers. This is regardless of having confirmed tribal affiliation and rights to land.

Navigating the bureaucratic and financial barriers of citizenship law can be distressing and confusing.

Currently it is unclear how the New Zealand government will amend citizenship law based on the findings of the Waitangi Tribunal.

One area that requires urgent focus is how citizenship laws affect those who have enjoyed the status and mobility between Aotearoa and Australia. Since the Trans-Tasman travel arrangement ^[5] was established in 1973, the movement of people between both nations has been encouraged.

Today, more than 170,000 Māori live in Australia ^[6] and more than 1,150 Indigenous Australians ^[7] reside in New Zealand. Thus citizenship law and its provisions impact both countries.

Both countries’ prime ministers have acknowledged Indigenous peoples — Māori, Aboriginal and Torres Strait Islander — as central to shared national identities ^[8] and to the enduring friendship between the countries.

The ICA, signed in 2020, further strengthens this relationship. It facilitates partnerships in leadership, entrepreneurship and knowledge-sharing among Indigenous peoples across both nations.

Currently, there are letters addressed to both governments asking if the ICA can form part of the advocacy for an Indigenous citizenship class, ensuring recognition of connection to place and territory.

Contemporary rights for enduring citizenship are underscored by legal precedent. In Love v Commonwealth ^[9] (2020), the High Court of Australia held that Aboriginal Australians cannot be considered “aliens” under the constitution, even if they are not citizens.

The court recognised that Aboriginal identity is grounded in deep and enduring connection to Country which cannot be severed by the state. This decision affirmed what Indigenous peoples have always understood: that identity, kinship and relationship to land are the true foundations of belonging.

Similarly, Ngāti Porou tribal leader Api Mahuika explored tribal membership ^[10], suggesting one’s right to reside in a particular area never ends if genealogical links are established.

A Trans-Tasman Indigenous citizenship class could translate these principles into practice. Such a framework would enable Indigenous peoples to obtain citizenship in either country based on genealogical connection.

It would remove the prohibitive administrative and financial barriers that currently exclude Indigenous children and guarantee their cultural and linguistic rights, including the right for children to be educated.

Crucially, the design and governance of this framework must be co-led by Indigenous groups from both nations, ensuring that the reform reflects Indigenous law and self-determination rather than bureaucratic convenience.

This suggestion would not replace existing citizenship categories but complement them. It extends the principles of partnership, reciprocity and belonging that both nations have committed to. Most importantly, it would affirm that Indigenous children can never be strangers on the lands of their ancestors.

Australia and Aotearoa New Zealand have a rare opportunity to lead the contemporary evolution of citizenship law, moving beyond symbolic recognition toward substantive reform that reflects Indigenous law and identity. It would express in law what has always been true in spirit: Indigenous belonging endures, regardless of the borders drawn across ancestral lands.