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New Zealand Human Rights Commission Submissions |
Last Updated: 26 March 2015
Human Rights Commission
Submission on the
Part 1 Submission
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Fisheries
and Other Sea Related Legislation Select Committee
12 July 2004
The Commission wishes to make an oral submission
Contact person:
Diana Pickard
Legal and Policy
Analyst
Direct dial 04 496 9774
CONTENTS PAGE
PART 1: EXECUTIVE SUMMARY
3
PART 2: INTRODUCTION AND CONTEXT FOR THIS
SUBMISSION 4
- Background to the Bill
- The Human Rights
Commission mandate
- Treaty of Waitangi and human rights
- Differing concepts of land ownership
- The Commission’s view of customary rights and
customary title
- Parliamentary sovereignty and human rights
PART 3: POSITIVE ASPECTS OF THE BILL: COMMON
GROUND 10
Positive cultural connections
- Other common ground in the Bill
PART 4:
HUMAN RIGHTS ISSUES RAISED BY THE Bill 12
- Part 4.1 Rights of minorities 13
- Part 4.2 Right to freedom from discrimination 18
- Part 4.3 Right not to be arbitrarily deprived of 23
property, and compensation
- Part 4.4 Right to development 26
PART 5:
THE WAYS FORWARD 30
- The Commission’s preferred recommendation
- Subsequent recommendations: Ways to improve
the Bill’s compliance with human rights
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Part 1: Executive summary
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PART 1: EXECUTIVE SUMMARY
1.1 The Commission has
considered the Foreshore and Seabed Bill in detail. We have canvassed the
context in which the foreshore and
seabed debate occurs, the positive aspects of
the Bill and, as our mandate requires, the Bill’s impact on domestic and
international
human rights obligations.
1.2 For the reasons set out in
this submission and the attached appendices, the Commission concluded that parts
of the Foreshore and
Seabed Bill are inconsistent with the following human
rights:
1.3 Consequently the Commission’s
preferred recommendation is that this legislation does not proceed until
a “longer conversation” has been held with the people of New
Zealand.
In the alternative, if the Bill is to proceed, the Commission
recommends the following changes, at a minimum, to address the Bill’s
current non-compliance with human
rights:[1]
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Part 2: Introduction and context for this submission
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PART 2: INTRODUCTION AND CONTEXT FOR THIS
SUBMISSION
Tēnā koutou me ngā āhuatanga o te
wā
2.1 The Human Rights Commission welcomes the opportunity to make
a submission on the human rights issues raised by the Foreshore and
Seabed
Bill.
Background to the Bill
2.2 The issue that
gave rise to the Government’s decision to introduce the Foreshore and
Seabed Bill was the decision of the
Court of Appeal in Ngati
Apa.[2] The Court of
Appeal’s ruling focused on the foreshore and seabed being part of the land
under Te Ture Whenua Maori Act 1993
–for which the Māori Land Court
can determine status – and on the general non-extinguishment of
(potential) customary
title in New Zealand. Regardless, the decision was widely
regarded in the media as determining Māori ownership of the foreshore
and
seabed.
2.3 In response, the Government announced its intention to
legislate. A series of hui were held around the country, at which Māori
expressed overwhelming opposition to the Crown’s proposals. The Waitangi
Tribunal was asked to consider the Crown policy and
found that the human rights
and Treaty rights of Māori were infringed by the proposed legislation.
When the Government announced
its intention to introduce the present Bill, there
was an unprecedented mobilisation of Māori culminating in the hikoi to
Parliament
in May of this year. No other issue has so incensed Māori in
recent times. Opposition to the Bill has not been restricted
to Māori.
There have also been many Pakeha voices of concern about the apparent
infringement of human rights and the guarantees
of the Treaty of
Waitangi.
2.4 There has been equally strong and
legitimate concern about public access to the foreshore and seabed, and in
support of public
or Crown ownership on behalf of all the people of New Zealand.
This has its roots in the close affinity that all New Zealanders feel
with the
beach, which has its own element of customary use.
2.5 The tragedy of
the public debate to date has been an unwillingness to recognise that there is a
difference between the Māori
and British concepts of ownership. The
Waitangi Tribunal did however point out that there was considerable common
ground to explore
in relation to inalienability of title and of guaranteed
public access.
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Part 2: Introduction and context for this submission
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The Human Rights Commission mandate
2.6 The Commission has
two primary functions under the Human Rights Act. These are:
2.7 In
addition, Commission is required to promote, by research, education, and
discussion, a better understanding of the human rights
dimensions of the Treaty
of Waitangi and their relationship with domestic and international human rights
law. The Commission may
also inquire into any matter that involves, or may
involve, the infringement of human
rights.[4]
2.8 These
principles of human rights, harmonious relations, and the human rights
dimensions of the Treaty of Waitangi, provide an
appropriate framework in which
to examine the Foreshore and Seabed Bill and to identify the most appropriate
way forward.
2.9 The Commission, as a national human rights institution,
also has obligations under both the Human Rights Act 1993 and the United
Nation’s Paris Principles to act independently, and to maintain
independence from government.
2.10 The Commission’s response on
issues surrounding the foreshore and seabed has been threefold:
2.11 In this submission our main
focus is on:
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Part 2: Introduction and context for this submission
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2.12 The Commission’s conclusions on the
human rights issues are stated in this submission, as are our recommendations
for change.
Our full analysis of the human rights issues, with our reasoning in
reaching these conclusions and thereby forming these recommendations,
are set
out in the appendices to this submission. We encourage reference to both
documents.
Treaty of Waitangi and human rights
2.13 The place of the Treaty of Waitangi in New Zealand today has profound significance for both human rights and for harmonious relations.
2.14 In exploring the relationship between human rights and the Treaty of Waitangi, the Commission has focused on the terms of the Treaty’s Preamble and three articles. In brief they are:
2.15 From Human Rights Commission regional
symposia and community dialogue sessions around the country over the last 12
months, six
themes based on human rights and the Treaty of Waitangi have emerged
that encompass the tensions and issues that must be addressed
before finalising
any legislation on the foreshore and seabed. The six themes are:
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Part 2: Introduction and context for this submission
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2.16 This submission touches on each of these themes. They are, for
example, closely related to Article 2 of the Treaty, and the
right to
development. They are also clearly connected to the good faith obligations of
the Treaty parties, and the rights of minorities
to enjoy their cultures and the
right to freedom from discrimination. These connections were foreshadowed by
the Waitangi Tribunal,
whose report on the Government’s foreshore and
seabed policy found breaches of the human rights and Treaty rights of
Māori.
Differing concepts of land ownership
2.17 An important contextual element of the entire foreshore and
seabed debate is the recognition of, and respect for, differing concepts
of land
ownership. This is seen through the different legal approaches to land
ownership – from the private and individualised
fee simple title to land,
gained under what is known as the Torrens system established by statute, to the
customary communal ownership
of land by aboriginal/native peoples, which at
times can be recognised at common law.
2.18 These differing concepts are
at the heart of any debate on customary rights and customary title in relation
to the foreshore
and seabed. These differences can in many circumstances be
described as an interpretive tension resulting from colonial history.
The Privy
Council, in Amodu Tijani, in 1921 observed that:
[I]n interpreting the native title to land ...much caution is essential. There is a tendency operating at times unconsciously to render title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely. As a rule, in the various systems of native jurisprudence throughout the Empire, there
is no such full division between property and possession as English lawyers
are familiar with.[5]
2.19 Alan Ward, writing in
1999[6], noted that:
To a large extent, however, the nature of Māori interest in waterways, the foreshore and the sub-surface has not been clearly determined. The
Crown Proposals [i.e. the 1994 ‘fiscal envelope’], however,
recognised only a ‘use interest’ and a ‘value
interest’
in the natural resources on the land, not the ‘ownership interest’
that Māori claim. This was in
part an illustration of the difficulty of
translating complex Māori concepts, such as mana over land, or the Treaty
guarantee
of ‘tino rangatiratanga’ over land and other taonga, into
British concepts of property. Māori customary rights
were certainly much
more than ‘use rights’, but the Crown and settlers have always been
reluctant to accept them as equivalent
to ‘ownership’,
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Part 2: Introduction and context for this submission
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‘proprietorship’ or ‘exclusive possession’ in the
European sense, partly because of the different levels and
kinds of rights
traditionally exercised over the same land.
2.20 These two concepts of
land ownership have some connection at present through the ability of the
Māori Land Court to recognise
land (including foreshore and seabed) as
having the status of Māori customary land for iwi or hapu. That status
can, in some
circumstances, provide for the land to be recognised as Māori
freehold land status. Freehold land status can entitle the applicant
to a
provisional title under the Land Transfer Act
1952.[7]
The
Commission’s view of customary rights and customary title
2.21 In this submission the term ‘customary title’ is
used to include the terms aboriginal title and native title. The
term
‘customary rights’ is used herein to denote the
‘sub-strata’ of practices, customs, activities and uses
which may
accompany customary title. For more transient activities, such as seasonal
hunting, or seasonal collection of seaweed,
customary rights will be unlikely to
amount to customary title over a particular piece of land.
2.22 Our view
on the nature of customary rights and, in particular, customary title is as
follows. The public law specialists, Chen
and Palmer have commented
that[8]:
[Customary rights and customary title] are recognised in international law
and some domestic law, and provide ways of protecting the
interests of
indigenous people and their associations with places of traditional significance
to them. Customary rights can include
the exercise of “mana” or
authority, guardianship responsibilities which contribute to conservation or
sustainable use
of resources, traditional practices such as food gathering, and
other activities such as visiting burial grounds or other significant
sites.
They can also in some circumstances add up to exclusive title.
...
2.23 Customary title is a right to the land itself, and if it is
to be established the following general criteria need to be
met:[9]
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Part 2: Introduction and context for this submission
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2.24 In
Canada customary title is protected by section 35 of the Constitution Act 1982,
which recognises and affirms aboriginal and
treaty rights. Customary title can
not be extinguished without consent, and legislation can not infringe upon it
without justification.
The Canadian Supreme Court has held that customary title
encompasses the right to exclusive use and occupation of land, for a variety
of
purposes which are not necessarily traditional. The Court stated:
The content of aboriginal title... is a right in land and, as such, is more
than the right to engage in specific activities which
may be themselves
aboriginal rights. Rather, it confers the right to use land for a variety of
activities, not all of which need
be aspects of practices, customs and
traditions which are integral to the distinctive cultures of aboriginal
societies. Those activities
do not constitute the right per se; rather,
they are parasitic on the underlying title. However, that range of uses is
subject to the limitation that they must not
be irreconcilable with the nature
of the attachment to the land which forms the basis of the particular
group’s aboriginal
title. This inherent limit... flows from the
definition of aboriginal title as a sui generis [unique] interest in
land, and is one in which aboriginal title is distinct from fee
simple.[13]
2.25 The New
Zealand Court of Appeal, in 1993[14]
said that “the nature and incidents of aboriginal title are matters of
fact dependent on the evidence in any particular case”.
This approach was
repeated by the Court in 2003 in Ngati
Apa[15].
Parliamentary
sovereignty and human rights
2.26 In New Zealand Parliament is
sovereign, and has the authority to enact legislation as it chooses.
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Part 2: Introduction and context for this submission
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2.27 However, there are matters which Parliament must take into account
when exercising its powers. These include constitutional
conventions,
international law, the Treaty of Waitangi, and the New Zealand Bill of Rights
Act 1990.[16] It is in the public
interest for any exercise of Parliamentary sovereignty to strive to accord with
international and domestic human
rights standards. This subject is discussed
in more detail in Appendix 1 to this submission.
PART 3:
POSITIVE ASPECTS OF THE BILL: COMMON GROUND
3.1 In the Waitangi
Tribunal’s report on the Government’s foreshore and seabed policy,
the Tribunal stated that:
It seems to us that [Māori] claimants and the Crown agree on some
fundamental points. Although the cultural imperatives are different,
they agree
that the public should generally have access to the foreshore and seabed (except
where this would cause harm), and they
agree that the foreshore and seabed
should not be
sold”[17]
3.2 The
Foreshore and Seabed Bill has positive aspects, reflecting common ground for
people in New Zealand.
Positive cultural connections
3.3 Despite the intensity of the debate surrounding the Foreshore
and Seabed Bill, a common thread running through it has been the
expression of a
positive cultural connection with the coastline, with the foreshore and seabed,
as part of being peoples in New Zealand.
The following statements are
illustrative of this connection.
For me, then, to be Pakeha on the cusp of the twenty first century is not to
be European; it is not to be an alien or a stranger in
my own country. It is to
be a non-Māori New Zealander who is aware of and proud of my antecedents,
but who identifies as intimately
with this land, as intensively and as strongly
as anybody Māori. It is to be, as I have already argued another kind of
indigenous
New Zealander.[18]
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Part 3: Positive aspects of the Bill: Common ground
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3.4 And from the petition of Tanameha Te Moananui and others from Pukerahui on 5 August 1869:
You, the Government, have asked for the gold of Hauraki; we consented. You asked for a site for a town; you asked also that the flats of the sea off Kauwaeranga should be let; and those requests were acceded to. And now you have said that the places of the sea which remain to us will be taken. O friends, it is wrong, it is evil. Our voice, the voice of Hauraki, has agreed that we shall retain the parts of the sea from high-water mark outwards. These places were in our possession from time immemorial ; these are the places from which food was obtained from the time of our ancestors even down to their descendants. ... O friends, our hands, our feet, our bodies are always on our places of the sea. ... The men, the women, the children are united in this, that they alone are to have the control of all the places of the sea.[19]
3.5 Iwi, hapu and whanau as indigenous people have a strong connection with the land – Papatuanuku – and thereby with the foreshore and seabed - the papamoana. This can be illustrated through linguistics. The word ‘tai’, for example, depicts the relationship that coastal communities had with their waters:
3.6 For iwi and hapu the
traditional and contemporary rights and responsibilities, rangatiratanga and
kaitiakitanga, which attach
to the foreshore and seabed, address:
3.7 An important aspect of the exercise of these
rights and responsibilities is that the culture is not static, but is constantly
required to adapt and develop. The following concepts, for example, can change
over time:
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Part 3: Positive aspects of the Bill: Common ground
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Other common ground in the Bill
3.8 Further positive aspects of the Bill, reflecting common ground,
comprise:
3.9 A
more detailed discussion of these further, positive aspects of the Bill can be
found in Appendix 2 to this submission.
PART 4: HUMAN
RIGHTS ISSUES RAISED BY THE BILL
4.1 The Commission’s main
concerns with the provisions of the Foreshore and Seabed Bill are that the
Bill:
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Part 4: Human rights issues raised by the Bill
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4.2 These
aspects of the Bill raise the following human rights issues:
4.1 Rights
of minorities;
4.2 Right to freedom from discrimination;
4.3 Right not to be arbitrarily deprived of property; and compensation;
and
4.4 Right to development.
4.3 Specific aspects of the Bill may
give rise to issues under more than one of the human rights listed above. And,
of course, human
rights do not exist separately, their application is both
universal and indivisible.
4.4 Appendix 9 to this submission also sets
out some further human rights issues where the Commission has concluded a breach
of human
rights standards is unlikely.
PART 4.1: RIGHTS OF
MINORITIES
4.5 Māori are an indigenous people who also form a
minority group in New Zealand. There has been resistance from indigenous
peoples to their rights being equated with the rights of cultural minorities, as
it can fail to take into account the specific history
and relationship to
territory that comes from being the first peoples
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Part 4.1: Rights of minorities
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of that territory. Viewing indigenous peoples solely as a minority group
can overlook a history of forced colonisation, distinct
cultural, social, and
economic rights, and a need for political protection. In other words, while
minority groups include indigenous
peoples they do not exhaust their
rights.[21]
4.6 Section 20
of the Bill of Rights Act protects the rights of minorities in New Zealand,
stating that:
A person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of
that minority, to enjoy the culture, to profess and practise the religion, or
to use the language, of that minority.
4.7 As Paul Rishworth has
commented:
There is a significant overlap between section 20 and the principles of the
Treaty of Waitangi as interpreted and applied by the courts.
Both signify the
need for consultation, good faith and proper consideration of Māori
interests. There may also be overlap
to the extent that substantive invasions
of Māori cultural rights may be labelled both as Treaty breaches by the
Waitangi Tribunal
and breaches of section 20 by the
courts.[22]
4.8 The
international source of section 20 is Article 27 of the International Covenant
on Civil and Political Rights (ICCPR), which
provides:
In those states in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied
the right, in community
with other members of their group, to enjoy their own culture, to profess and
practice their own religion,
or to use their own language.
Is
there a breach of section 20 of the Bill of Rights Act?
4.9 The
provisions of the Foreshore and Seabed Bill impose the following cultural
constraints on Māori:
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Part 4.1: Rights of minorities
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status for Māori customary land in foreshore and seabed areas). In doing so, the Bill provides only a lesser recognition of customary rights ;
4.10 In addition, and importantly under Article 27 of
the ICCPR, the Bill’s provisions do not have the consent of the majority
of iwi, hapu and whanau in New Zealand.
4.11 Consequently the Bill
substantially denies Māori, the indigenous people of New Zealand, the right
to enjoy their culture
in relation to the foreshore and seabed by placing limits
on that right. This is a breach of section 20 of the Bill of Rights Act.
Are these limits reasonable and justifiable?
4.12 When considering what limits are reasonable – for civil
and political rights originating in the ICCPR - the Siracusa Principles
provide
guidance.[25] Thomas J in the Court
of Appeal[26] has stated that the
test of whether rights limitations are reasonable “should not be
approached without having regard to the
Siracusa Principles”.
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Part 4.1: Rights of minorities
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4.13 The Principles state that “no limitations or ground for
applying them to rights guaranteed by the Covenant are permitted
other than
those contained in the terms of the covenant itself”. Article 27 of the
Covenant (the origin of section 20 of the
Bill of Rights Act) contains no
limitations. There is, therefore, a strong argument that allowing any limits to
be placed on the rights of minorities to enjoy their
culture, as provided in
Article 27 and section 20, weakens that right in an unacceptable and
inappropriate manner.
4.14 However, given the absence of New Zealand
case law on the application of section 20 in practice, the Commission has gone
on to
consider whether these limits on the rights of a minority are reasonable
and justifiable under section 5 of the Bill of Rights Act.
This section
provides that the rights can be:
[S]ubject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.
4.15 The scheme
of analysis put forward by New Zealand’s Court of
Appeal[27] – best employed
when seeking to identify reasonable and justifiable limits on human rights under
section 5 – mirrors
similar developments in relevant jurisdictions.
Identifying reasonable limits on human rights is more than a matter of simple
balancing
– more than a version of ‘on the one hand and on the other
hand’. It is instead a careful and measured analysis,
comprising several
stages, as set out in the material in Appendix 4 to this submission.
4.16 In short, the inquiry best employed under section 5 of the Bill of
Rights Act involves consideration of:
A: Is the policy objective for the Bill significant and
important?
4.17 The relevant policy goal to consider in relation to
the right of minorities, is the goal to ‘recognise and protect’
customary rights. This includes investigating
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Part 4.1: Rights of minorities
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their “full extent”, and providing “for formal
discussions on redress”.[29]
This forms a significant and important policy objective.
4.18 Please
note that we analyse the Government’s primary policy objective, of legal
certainty over the foreshore and seabed,
in detail under the next part of this
submission.[30]
B. Is
the Bill a rational and proportionate way in which to reach the policy
goal?
4.20 The Bill does not achieve the objective of recognising and
protecting customary rights in a rational and proportionate manner,
because the
Bill:
Conclusion on Part 4.1:
Rights of minorities
4.21 The Bill as currently drafted breaches
section 20 of the Bill of Rights Act concerning the rights of minorities. The
Bill places
limits on the rights of iwi, hapu, and whanau to enjoy their culture
in connection with the foreshore and seabed. These limits are
not reasonable
and justifiable under section 5 of the Bill of Rights Act. In reaching this
conclusion, the Commission has followed
the respected form of analysis for
identifying such limits on human rights.
4.22 Full details of our
analysis of the rights of minorities are set out in Appendix 3 to this
submission.
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Part 4.2: Right to freedom from discrimination
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PART 4.2: RIGHT TO FREEDOM FROM DISCRIMINATION
4.23 Section
19(1) of the Bill of Rights Act provides everyone in New Zealand with the right
to freedom from discrimination on certain
grounds which include
race.[31] The international origin
for this right is Article 26 of the ICCPR, which provides that:
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect
the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any
ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin,
property, birth or other
status.
4.24 Taking into account leading
decisions of New Zealand and Canadian courts on the meaning of
discrimination[32], the
identification of discrimination under section 19(1) of the Bill of Rights Act
can require asking whether there is:
Identifying prima
facie discrimination in the Foreshore and Seabed Bill
4.25 In
general terms, the Constitutional Court of South Africa has recently
held[33] that racial discrimination
can lie “in the failure to recognise and accord protection to indigenous
ownership while, on the
other hand, according protection to registered
title”.
4.26 Of more specific relevance to the current Bill, the
Attorney-General’s recent advice - on the Foreshore and Seabed
Bill’s
compliance with Bill of Rights Act - states that:
On balance, I accept it is seriously arguable that these two features of the
Bill, i.e., extinguishment of the possibility of Māori
customary title and
the
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Part 4.2: Right to freedom from discrimination
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absence of a guaranteed right of redress, are likely to lead to a finding
that the Bill prima facie infringes section 19 BORA.
[34]
4.27 The Commission agrees
with the Attorney-General’s opinion that prima facie [on the face
of it] discrimination exists in the provisions of the Bill. The Bill appears to
breach the right to freedom from discrimination
on the ground of race.
Are the limits on the right to freedom from discrimination
reasonable and justifiable?
4.28 As set out previously, the inquiry
best employed under section 5 of the Bill of Rights Act can be phrased as:
A: Is the policy objective for the Bill significant and
important?
4.29 The Attorney-General’s
advice[35] on the prima facie
discrimination in the Foreshore and Seabed Bill is that:
The principal reason for introducing the Bill is to clarify the law for both Māori and non-Māori alike. The state of the law on this subject may best be described as radically indeterminate. The Ngati Apa decision created significant uncertainty with regard to the common law status of customary interests in the foreshore and seabed in New Zealand. ...
Without legislation the Courts would be required to develop the common law of
indigenous rights on a case-by-case basis over many
years.
... [T]here would be substantial uncertainty as to the legal status of New
Zealand's coastline for many years, and governments have
the obligation to
provide certainty in the law wherever possible.
4.30 The
Government’s primary policy goal in the Bill can therefore be summarised
as one of ‘clarifying the law in relation
to the foreshore and seabed in
order to provide certainty’. Some certainty has been seen as necessary
due to fact (i.e. the
decision in Ngati Apa as it relates to Crown
ownership of the
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Part 4.2: Right to freedom from discrimination
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foreshore and seabed), while other certainty is seen as necessary due to
conjecture (i.e. on whether Māori would allow public
access to the
foreshore, or whether the Māori Land Court would grant foreshore and seabed
that gained customary land status,
the further status of Māori freehold
land).
4.31 A full analysis of this policy goal is set out in Appendix 5.
Here we note that the notion of “certainty” as a goal
has the
capacity to be so broad that it could be adapted at different times to apply to
all statute law. Such a goal may serve as
a slippery slope to all legal
measures that introduce some measure of certainty being deemed significant and
important goals under
section 5. This could also be seen as shorthand for
administrative efficiency, which the Court of
Appeal[36] has stated should not
transcend human rights, rather than providing an acceptable basis for limiting
rights. It is in the public
interest that a policy goal under the section 5
test be focused and specific, so that human rights cannot be easily
limited.[37]
4.32 In
addition, the UN Committee on the Elimination of Racial Discrimination has
expressed concern over the Australian government’s
legislative measures to
gain legal certainty at the expense of native title in relation to the
non-discrimination provisions of the
International Convention on the Elimination
of all Forms of Racial
Discrimination.[38] A goal in New
Zealand of certainty over the foreshore and seabed, similarly gained at the
expense of recognition of customary title,
may attract similar international
criticism.
4.33 Consequently, the Commission is not convinced that an
objective of legal certainty over the foreshore and seabed is sufficiently
focused, nor (given the CERD Committee comment) sufficiently significant and
important, to form an objective that satisfies the first
limb of the inquiry
under section 5.
4.34 Nonetheless, in this instance, we have gone on to
consider the second limb of the section 5 inquiry - whether the Bill is a
rational
and proportionate way in which to reach that policy
goal.
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Part 4.2: Right to freedom from discrimination
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B. Is the Bill a rational and proportionate way in which to reach the
policy goal?
A rational way to reach the
goal?
4.35 The provisions of the Bill do not provide a rational
relationship with the Government’s objective.
4.36 The one clear
achievement in terms of certainty is that the Crown will own the foreshore and
seabed. However, the Bill provides
few actual further advances in terms of
legal certainty over the foreshore and seabed. As was the situation after the
Court of Appeal’s
decision in Ngati Apa, the majority of matters
remain to be settled by the courts. For example, significant matters yet to be
determined on a case by
case basis are:
4.37 In addition:
confusing and uncertain jurisprudence – with appeals from the Māori Land Court for matters of tikanga remaining to the Māori Appellate Court.[41]
4.38 In short, bar ownership, the certainty provided by the Bill
goes little further than a new set of rules governing how decisions
are to be
made over time,
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Part 4.2: Right to freedom from discrimination
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replacing a previous set of rules. A rational connection between what
the Bill provides, and the Government’s stated policy
goal, is
questionable.
A proportionate way to reach the
goal?
4.39 The means used in the Bill to achieve the Crown’s
policy goal are not proportionate. There appear to be other ways to
achieve a
workable level of certainty about the foreshore and seabed while limiting less
the right to freedom from discrimination.
Iwi have expressed the view that
under the Bill the brunt of the measures to create certainty (i.e. ownership
vesting in the Crown)
are borne by Māori, and Māori bear the brunt of
uncertainty created by the Bill (e.g., on whether customary activities
will be
recognised).
4.40 It is not necessary to extinguish the possibility of
Māori customary title at common law, and without certain redress, in
order
to gain certainty over the foreshore and seabed. Nor is the imposition of time
limits on the recognition of customary rights
necessary to achieve that
goal.[42] Instead, certainty can
only be reached through durable solutions, reached by a means that respects
human rights and which, as far
as possible, have the agreement of all
affected.
4.41 Possible alternatives to the new legal scheme are
canvassed in detail in Appendix 5, and in our recommendations in Part 5 of
this
submission. We believe that some of these alternatives may provide a more
proportionate response to foreshore and seabed issues.
Some may reach the
policy goal better than it is reached by the provisions of the Bill, while
limiting less, if at all, the right
of Māori to freedom from
discrimination. As reflected in our recommendations, a potential model is
provided by the Canadian
approach, where customary title is preserved.
4.42 The Siracusa Principles can again provide
guidance.[43] The Principles state
that “the scope of a limitation .. in the Covenant shall not be
interpreted so as to jeopardise the essence
of the right concerned”.
Proportionally, the scope of the Bill’s measures go further than
necessary, for example, by
extinguishing customary title. It could be argued
that provisions of the Bill are implementing the policy goal of certainty in a
way that jeopardises the essence of the right to freedom from discrimination.
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Part 4.2: Right to freedom from discrimination
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Conclusion on Part 4.2: Right to freedom from discrimination
4.43 The Bill in its current form is
discriminatory.[44] In this, we
agree with the analysis employed by the Attorney-General in her advice on the
Bill.[45]
4.44 The Commission
has formed this conclusion because:
4.45 Any goal of greater legal clarity and certainty over the
foreshore and seabed in New Zealand will only be achieved through the
creation
of durable solutions on all aspects of customary rights and customary title,
reached by taking a case by case approach to
an end supported, as far as
possible, by all parties to these matters, and reached through compliance with
human rights.
4.46 The Treaty of Waitangi settlement process, and the
recent petition concerning the 1982 Citizenship (Western Samoa) Act, illustrate
the importance of avoiding actions that create or perpetuate a legitimate sense
of grievance in our communities.
PART 4.3: RIGHT NOT TO BE
ARBITRARILY DEPRIVED OF PROPERTY: AND COMPENSATION
4.47 The right to
be immune from the arbitrary deprivation of property is a human right. Article
17 of the Universal Declaration
of Human Rights declares that:
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Part 4.3: Right not to be arbitrarily deprived of property: and
compensation
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Everyone has the right to own property alone as well as in association with
others. No-one shall be arbitrarily deprived of his
property.
4.48 Clearly the qualifier for this right is provided by the
term ‘arbitrary’, and a prohibition against any arbitrary
deprivation of property is included in the First Protocol to the European Human
Rights Convention. The American Convention on Human
Rights also provides, in
Article 21(2), that “no one shall be deprived of his property except upon
payment of just compensation”.
[46]
4.49 While New
Zealand’s domestic human rights legislation is silent in relation to
arbitrary deprivation of property, other
legislation and policy supports the
domestic existence of this right - for example, the scheme of the Public Works
Act 1981, and
the terms of Treaty of Waitangi settlements negotiated by the
Office of Treaty Settlements.
Is such a ‘property’
right triggered by the Foreshore and Seabed Bill?
4.50 The Commission
considers that there is potential for this property right to be triggered by the
Bill. Our reasons for this view
are set out in Appendix 6 to this
submission.
What is a deprivation of
property?
4.51 Deprivation of property “means divesting,
keeping out of enjoyment, or causing loss (for example, by taking away,
destruction,
or by causing extinguishment) of a
right.”[47]
When is a deprivation of property arbitrary?
4.52 The
right not to be arbitrarily deprived of property does not preclude restrictions
on the use of land, so long as they serve
objectives of general public interest,
and as long as restrictions do not constitute a disproportionate and intolerable
interference
with the rights of the owner.
4.53 Arbitrary actions
incorporate elements of: occurring without reasonable cause; made without
reference to adequate determining
principles or without following proper
criteria or procedures; inappropriateness; injustice; and lack of
predictability.
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Part 4.3: Right not to be arbitrarily deprived of property, and
compensation
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4.54 With regard to the provisions of the Foreshore and Seabed Bill, the
Commission considers that the removal of property rights
in a manner which is
discriminatory could well be considered arbitrary. Further, the breadth of the
definition of some rights, in
clause 28(a) of the Bill for example, is so wide
as to be potentially arbitrary in application. And lastly, we suggest that the
deprivation of an ability to seek customary title at common law is arbitrary, if
the deprivation was not necessary. Appendix 7 “The
Necessity for the
Foreshore and Seabed Bill?: Māori Land Court Statistics” provides a
full discussion of necessity.
4.55 The Commission considers that these
factors amount to an arbitrary deprivation of property for iwi and
hapu.
4.56 We now turn to the question of compensation/redress for a
deprivation of property rights – which is closely related to
questions of
arbitrariness.
Redress / Compensation under the Bill
4.57 Clause 33 of the Bill provides that, once the High Court has
recognised customary title - amounting to a proven exclusive use
and occupation
over part of the foreshore and seabed - and has replaced it with a territorial
customary right, the:
Ministers to whom the finding is referred must enter into discussions with
the group in whose favour the finding is made; the purpose
of such discussions
is to consider the nature and extent of any redress that the Crown may give.
4.58 The principles which underlie the right of a person not to be
deprived of property without compensation are:
First, that some public interest is necessary to justify the taking of
private property for the benefit of the state and. Secondly,
that when the
public interest does so require, the loss should not fall upon the individual
whose property is taken but should be
borne by the public as a
whole.[48]
4.59 The
Attorney-General, in her advice on the Bill has acknowledged that “the
absence of a guaranteed right of redress”
in the Bill gives rise to
prima facie
discrimination.[49] The Waitangi
Tribunal has stated it considers compensation “essential” in
response to removal of Māori property
rights.
4.60 The Commission
believes that once the right holder has been able to prove the existence of
customary title, equitable redress
(whether as monetary
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Part 4.3: Right not to be arbitrarily deprived of property, and
compensation
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compensation or in some other form) should be guaranteed to the
right holder by the Crown. The inclusion of statutory criteria to guide
negotiation with Ministers about redress would appear
to be a possible safeguard
against arbitrariness (for which South African legislation provides a potential
model).
Conclusion on Part 4.3: Right not to be arbitrarily deprived of property,
and compensation
4.61 The potential deprivation of property rights on a
discriminatory basis, as provided in the Bill, is likely to prove arbitrary.
Matters of the necessity for this Bill, and the breadth of definitions,
contribute to this view.
4.62 Once the existence of a customary title
has been proved, equitable redress by the Crown should be guaranteed to that
right holder
under the Bill (whether in the form of monetary compensation and/or
in some other form). To further avoid questions of arbitrariness,
the Bill
should include statutory criteria for negotiating redress. Full details of the
Commission’s analysis of the right
not to be arbitrarily deprived of
property, and the right to compensation, are set out in Appendix 6 to this
submission.
PART 4.4: RIGHT TO DEVELOPMENT
4.63 Just as all New Zealanders believe they have the right to
develop land and property in which they hold property rights, so Māori
believe they enjoy such rights in respect of their property. These rights to
development, subject to the regulation or qualifications
that Parliament may
impose, are not only
part of New Zealand common law, but are grounded in
international law and in the Treaty of Waitangi.
International
instrument
4.64 The UN General Assembly’s 1986 Declaration on
the Right to Development[50] states
that:
The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.
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Part 4.4: Right to development
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The human right to development also implies the full realisation of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise
of their inalienable right to full sovereignty over all their natural wealth
and resources.
4.65 The Declaration calls on governments to assist with
the full realisation of these rights.
The Treaty of Waitangi and
the right to development
4.66 The Waitangi
Tribunal[51], considering the right
to development under Article 2 of the Treaty of Waitangi in relation to fishing,
found that:
(a) The Treaty does not prohibit or limit any specific manner, method or purpose of taking fish, or prevent the tribes from utilising improvements in techniques, methods or gear.
(b) Access to new technology and markets was part of the quid pro quo for settlement. The evidence is compelling that Māori avidly sought Western technology well before 1840. In fishing, their own technology was highly developed, and was viewed with some amazement by early explorers. But there is nothing in either tradition, custom, the Treaty or nature to justify the view that it had to be frozen. [emphasis added]
(c) An opinion that Māori fishing rights must be limited to the use of canoes and fibres of yesteryear ignores that the Treaty was also a bargain. It leads to the rejoinder that if settlement was agreed to on the basis of what was known, non-Māori also must be limited to their catch capabilities at 1840.
Māori no longer fish from canoes but nor do non-Māori use wooden sailing boats. Nylon lines and nets, radar and echo sounders were unknown to either party at the time. Both had the right to acquire new gear, to adopt technologies developed in other countries and to learn from each other.
(d) The Treaty offered a better life for both parties. A rule that limits Māori to their old skills forecloses upon their future. That is inconsistent with the Treaty.
4.67 It is generally accepted
by the Treaty parties that the Treaty does give Māori development rights to
resources. Areas of
disagreement relate to the aspects and scope of such a
right.[52]
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Part 4.4: Right to development
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4.68 In Tainui Māori Trust Board v A-G and Ngai Tahu Māori
Trust Board[53], Cooke P
commented that the spirit of the Treaty could require some kind of priority
right be given to Māori development.
How does the Bill affect
the right to development held by Māori?
4.69 In 2002 the
Committee on the Elimination of Racial Discrimination said it remained concerned
about the continuing disadvantages
that Māori face in their enjoyment of
social and economic rights. The Committee urged New Zealand to devote priority
attention
to this issue and to continue to encourage active and effective
participation by Māori in the search for solutions to reduce
these
disadvantages.[54] Consequently,
serious consideration needs to be given to whether the Bill may have the effect
of further disadvantaging iwi, hapu
and whanau in respect of the right to
development.
Removal of Māori freehold land status for
foreshore and seabed
4.70 Clause 10 of the Bill removes the ability
of Māori to seek recognition in the Māori Land Court of foreshore and
seabed
as having the status of Māori customary land, and Māori
freehold land (under Te Ture Whenua Māori Act). Any path
to seek freehold
title for a part of foreshore and seabed is thereby removed. However, those
with existing private title to foreshore
and seabed are largely unaffected by
the provisions of the Bill.
4.71 Clearly the ability to undertake
commercial activities is greater if you own the land on which the activity is to
occur. There
are no questions of access. There is the ability to raise a
mortgage (although alienation also becomes a possibility with fee simple
title).
Without the capacity to gain freehold title to customary foreshore and seabed,
iwi, hapu, and whanau may therefore have a
reduced ability to undertake economic
development in this area.
4.72 However, this distinction will not affect
Māori right to development alone, given that all economic
development of the foreshore and seabed is regulated in the same way under the
RMA. Being a private owner of land is not
a protection against the regulation
and monitoring of the RMA.
‘Frozen in time’ limits on
Māori development in the foreshore and seabed area
4.73 Under
clause 46 of the Bill a group of Māori who carry out a recognised customary
activity, under a customary rights order,
may derive commercial benefit
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Part 4.4: Right to development
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from that activity. However under clause 42 of the Bill for an activity
to be recognised in such an order it:
4.74 Such ‘frozen in time’ restrictions were
critiqued earlier in this submission in relation to Māori culture and
the
rights of minorities. They appear contrary to the interpretation of Article 2
of the Treaty of Waitangi as set out above. It
is possible to envisage a number
of economic activities in the foreshore and seabed area, such as harvesting
seaweed, gathering sand,
gravel and/or rocks, eco-tourism, horse-trekking, and
tramping, which could provide commercial benefit to Māori. However these
‘freezing’ restrictions may seriously hinder the ability of
Māori to carry out those activities. The Commission
queries whether others
carrying out economic activities in the foreshore and seabed area are similarly
limited in the nature of the
commercial activities they can
undertake.[55]
4.75 These
limits may unreasonably infringe the right to development of Māori in
specific foreshore and seabed areas.
Conclusion on Part 4.4: Right
to development
4.76 The Bill in its current form breaches the right
to development.
4.77 The changes to the RMA do introduce new layers of
connections between iwi and hapu (as holder of ancestral connection and
customary
rights orders), and government (mainly local authorities). This is in
addition to the existing requirements under the RMA for consultation
with iwi,
and is a
positive step in terms of Māori customary rights being taken
into account in any foreshore and seabed development.
4.78 However, in
balance against those factors, is the Waitangi Tribunal’s interpretation
of development under Article 2 of
the Treaty of Waitangi, and that:
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Part 4.4: Right to development
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taken into account when local authorities consider foreshore and seabed development under the RMA;
4.79 In light of these factors, and the Tribunal’s
findings, the Bill does not appear to place reasonable limits on the right
to
development.
PART 5: THE WAYS FORWARD
5.1 In
dealing with the foreshore and seabed issue, the challenge facing the Select
Committee, and us all, is to continue to deserve
Michael King’s optimism
about New Zealanders, that:
most New Zealanders, whatever their cultural backgrounds, are good-hearted,
practical, commonsensical, and tolerant. Those qualities
are part of the
national cultural capital that has in the past saved this country from the worst
excesses of chauvinism and racism
seen in other parts of the
world.[56]
5.2 And words of
caution and optimism come from Alison Quentin-Baxter:
The history of our country has left a legacy of ignorance and prejudice about
the rights of Māori as the tangata whenua that
seems harder to eradicate
than some of us had hoped. Still, I have some confidence that, if people are
told the facts, asked to
agree to outcomes that are as fair as possible to
everyone, and feel that what is put to them has the ring of truth, it will be
possible
to move away from the politics of fear and envy that threaten our
society.[57]
5.3 The Select
Committee has a responsibility to make recommendations on the Bill that protect
human rights and do not breach the
Treaty of Waitangi.
The
Commission’s preferred recommendation
5.4 The Commission
recommends that this legislation does not proceed until a “longer
conversation” has been held with
people in New Zealand, to better
determine a course of action that will gain broader consent and support. This
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Part 5: The Ways Forward
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preferred course of action supports the same, earlier suggestion of the
Waitangi Tribunal. Durable solutions to issues seriously
affecting the
indigenous people of New Zealand can only be created on the basis of negotiation
and agreement.
Subsequent recommendations: Ways to improve the
Bill’s compliance with human rights
5.5 In the alternative,
should the intention of the Government continue to be the passage of this
legislation, we make the following
recommendations to address matters in the
Bill that do not comply with human rights.
Recommendation 1:
Preserve customary title
5.6 The provisions of the Bill should be
amended so that full legal and beneficial ownership of the foreshore and seabed
vests in
the Crown where no customary title for that part of the foreshore and
seabed is proven on a case by case basis through the courts.
This preserves the
possibility of customary title, and would only apply in circumstances
where the customary connection with the foreshore and seabed amounts to
exclusive group use and occupation.
Explicit legislative provision in clause 11
should therefore be made for the concept of Crown ownership to be subject to
proven
customary title in this manner. The Crown maintains the role of
regulating the foreshore and seabed area. The Canadian approach
provides
guidance.
5.7 For those who can prove customary title, there should be no
requirement to get customary rights (i.e. activities) or ancestral
connections
recognised first, using separate proceedings – as required under the
current drafting of the Bill. This current
requirement fails to recognise that
the heart of the entitlements should flow from a relationship with the foreshore
and seabed sufficient
to amount to customary title. A special type of customary
title could be developed to recognise this
connection.[59] Proven customary
title should lead to a guarantee of some primary role and abilities with regard
to that part of foreshore and seabed.
There is not this level of connection
currently in the Bill.
5.8 Any loss of an aspect of customary title
should be recognised through guaranteed redress by the Crown, the nature and
amount of
which to be negotiated with the Crown. In Canada where customary
title is infringed, it must pass the Canadian Supreme Court’s
“test
of justification”[60] which
includes compensation.
5.9 The sub-strata of customary rights relating
to customary activities, uses and practices, could continue to be dealt with in
the
manner as contained in the Bill (but subject to the following recommended
changes).
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Part 5: The Ways Forward
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Recommendation 2: Improve status for territorial customary rights
holders
5.10 The Commission raises for the consideration of the Select
Committee why the recognition of a territorial customary right (when
it amounts
to a proven exclusive group use and occupation of an area) under clause 29 of
the Bill does not result in the holder of
the right having a particular status
under the RMA. We suggest that such a right, or the proven existence of
customary title (as
per our Recommendation 1) should at a bare minimum
oblige local authorities to consult.
Recommendation 3: Provide
guarantee of equitable redress for loss of exclusive customary title in clause
33
5.11 To avoid breaching the right not to be arbitrarily deprived of
property, clause 33 of the Bill must be amended to guarantee equitable
redress
for all such losses of proven customary title. The Commission considers
that the inclusion of statutory criteria in the Bill, to guide the
negotiations
on redress, would be appropriate. South African legislation provides potential
models.[61]
Recommendation
4: Provide avenue of appeal for territorial customary rights applicants
5.12 An avenue of appeal should be provided, so that High Court
decisions on whether ‘territorial customary rights’ (and
thereby
‘redress’) exist can be reviewed. Given that the territorial
customary right is the recognition of the equivalent
of customary title (with
exclusive use and occupation), fairness of process is
vital.
Recommendation 5: Remove ‘fiduciary duty’ from
clause 9 of the Bill
5.13 Clause 9 of the Bill sets out the customary
rights jurisdiction of the High Court in relation to the foreshore and seabed,
limiting
it to the provisions of this Bill. Matters so limited include
“any claim ...based on the recognition at common law of ...
fiduciary duty
of the Crown, ...or duties of a similar nature”. Mindful of the Canadian
case law on fiduciary duty owed to
indigenous
peoples,[62] the Commission queries
the effect this exclusion of fiduciary duty claims will have in relation to the
Crown’s foreshore and
seabed obligations under the Treaty of
Waitangi.[63] We recommend this
aspect of the clause is either specifically clarified or
removed.
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Part 5: The Ways Forward
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Recommendation 6: Improve the inalienability provisions in clause 12
of the Bill
5.14 Clause 12 allows alienation of the foreshore and seabed
by limited means. When the foreshore and seabed to be alienated is subject
to
ancestral connection orders, customary rights orders, and/or a territorial
customary right, there should be a specific requirement
for alienation to be in
accordance with tikanga.
Recommendation 7: Clarify the ability to
protect culturally important sites
5.15 We recommend that clause 21 of
the Bill include details about the reasons that might give rise to a restriction
or prohibition
of access to the foreshore and seabed (for example, due to rahui,
or wahi tapu). The Commission also queries whether Māori
who have had
customary title amounting to exclusive occupation and possession recognised as a
‘territorial customary right’
under clause 29 of the Bill, should
also be consulted in relation to such restrictions or prohibitions over relevant
parts of the
foreshore and seabed.
Recommendation 8: Refine
breadth of the definition of customary rights in clause 28(a) of the Bill
5.16 Clause 28(a) of the Bill defines a broad group of customary rights
that it is removing, and replacing with a territorial customary
right. For
example, it includes “rights or titles of a similar kind”. Is there
any certainty about what this means
in practice? The breadth if this definition
appears to raise the potential for an ‘arbitrary’ deprivation of
rights.
Recommendation 9: Remove the time limits in the Bill
5.17 Clauses 37 and 58 of the Bill require that applications to the
Māori Land Court for ancestral connection and customary rights
orders, and
to the High Court
for customary rights orders, are time barred after 31
December 2015. These time limits serve no meaningful purpose, and have the
capacity to create injustice and grievances. They should be removed from the
Bill.
Recommendation 10: Amend requirements relating to
1840
5.18 In order to obtain a customary rights order under either clause
42 or clause 61 of the Bill specific connections with the foreshore
and seabed
have to be proven to have existed in a “substantially uninterrupted
manner” since 1840. This requirement
appears to freeze in time iwi, hapu
and whanau rights to both enjoy their culture as one which is dynamic and
developing, and to
realise a right to development in 2004. We recommend that,
at a minimum, this requirement in the Bill be amended to recognise
activities that are “an exercise in modern form of a pre-contact
practice”.[64]
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Part 5: The Ways Forward
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Recommendation 11: Remove or rephrase the limits on customary
connections set by clauses 42(2)(a) and 61(2)(a) of the Bill
5.19 Under
these two clauses of the Bill, it is no excuse if a relevant group has been
prevented from carrying out their customary
activity in a substantially
uninterrupted manner since 1840 because of “another activity carried out
under an enactment or
rule or law”. These clauses have the capacity to
compound grievance and injustice - for example, if the group has been
substantially
prevented from carrying out the activity due to raupatu/land
confiscation later shown to be unjust. These limitations should be
removed from
the Bill, or rephrased to bar such unjust exclusions from the foreshore and
seabed being taken into account.
Human Rights Commission
July 2004
[1] These recommendations are set
out in full in Part 5 of this
submission.
[2] Ngati Apa, Ngati
Koata & Ors v Attorney-General & Ors [2003] NZCA 117; [2003] 3 NZLR
643.
[3] Section 5(1) of the Human
Rights Act 1993 refers.
[4]
Sections 5(2)(h) and (d) of the Human Rights Act respectively
refer.
[5] Amodu Tijani v
Secretary, Southern Nigeria [1921] 2 AC 398, at 402 to
403.
[6] Alan Ward, An Unsettled
History: Treaty Claims in New Zealand Today (Bridget Williams Books,
Wellington, 1999) at page
53.
[7] See further the Māori
Land Court statistics in Appendix 7 to this
submission.
[8] Chen & Palmer,
Wellington Watch 2003/31, 22 August 2003.
[9] Delgamuukw v British
Columbia [1997] 3 SCR 1010, at paragraphs 112, and 143 to
159.
[10] Delgamuukw v British
Columbia [1997] 3 SCR 1010, at paragraph
147.
[11] Delgamuukw v British
Columbia [1997] 3 SCR 1010, at paragraphs 112 to
115.
[12] This is called the
Crown’s right of pre-emption. This common law rule is to be distinguished
from Māori customary views
that land should only be alienated in accordance
with tikanga.
[13] Delgamuukw
v British Columbia [1997] 3 SCR 1010, at paragraph 111.
[14] Te Runanganui o ti Ika
Whenua Society v Attorney-General [1993] NZCA 218; [1994] 2 NZLR
20.
[15] The Court of Appeal was
clear that the nature and extent of customary rights in the foreshore and seabed
should be determined by
the Māori Land Court on a case by case basis under
Te Ture Whenua Māori Act, stating that “whether in the particular
case that will lead to any outcome favourable to the appellants will be for the
Māori Land Court after investigating the facts”:
Ngati Apa, Ngati
Koata & Ors v Attorney-General & Ors [2003] NZCA 117; [2003] 3 NZLR 643, Gault P at
paragraph 125.
[16] Phillip
Joseph Constitutional and Administrative Law in New Zealand
2nd edition (Brookers, Wellington, 2001) at pages 495 to 506. See
also pages 291 to 292.
[17]
Waitangi Tribunal, Report on the Crown’s Foreshore and Seabed Policy:
Wai 1071 (Legislation Direct, Wellington, 2004), at paragraph 5.3.3, page
144.
[18] Michael King Being
Pakeha Now (Penguin Books, Auckland, 1999), at page 239.
[19] Extract provided by Dr Alex
Frame, University of Waikato, June
2004.
[20] We note the
Attorney-General referred to this as the “extinguishment of the
possibility of Māori customary title”
over the foreshore and seabed
in paragraph 79 of the Attorney-General’s advice, Foreshore and Seabed
Bill, 6 May 2004.
[21]
Human Rights and Equal Opportunity Commission (HREOC), Australia
‘Developing human rights principles for resource development
on aboriginal
land’ at www.hreoc.gov.au/social_justice/corporateresponsibility
; See also HREOC Native Title Report 2003 at page 13. Note also that
Māori have made several Communications to the UN Human Rights Committee
claiming a breach of their
rights under Article 27 of the ICCPR, which provides
the Rights of Minorities.
[22]
Paul Rishworth et al The New Zealand Bill of Rights (Oxford University
Press, Melbourne, 2003) at pages 410 to
417.
[23] R v Van der Peet
[1996] 2 SCR 507, at paragraphs 2 to
3.
[24] Hopu v France
(CCPR/C/60/D/549/1993) at paragraph 10.3. The UN Human Rights Committee gave
‘family’ a broad interpretation to include
all those comprising
‘family’ as understood in the society in question. “Cultural
traditions should be taken into
account when defining the term
‘family’ in a specific situation”.
[25] The Siracusa Principles on
the Limitation and Derogation Provisions in the International Covenant on Civil
and Political Rights
(4 HRNZ 753, 754). Relevant extracts are set out in
Appendix 4 to this
submission.
[26] In Quilter v
Attorney-General [1997] NZCA 412; [1997] 4 HRNZ 170, at page
197.
[27] Moonen v Film &
Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (CA), paragraph
18.
[28] See also Northern
Health Authority v Human Rights Commission [1997] NZHC 1991; [1998] 2 NZLR 218 which speaks to
the selection of options with the “least possible interference” with
human rights.
[29]
Clause 3 of the Bill refers. The range of reasons for the new legal scheme
introduced by the Foreshore and Seabed Bill as set out
in clause 3 cover:
• enables applications to be made to the High Court
concerning rights previously held at common law, and chance to discuss
redress.
[30] See Part 4.2 Right
to freedom from discrimination in this submission and Appendix 5.
[31] The grounds of prohibited
discrimination are set out in section 21 of the Human Rights Act
1993.
[32] For example,
Quilter v Attorney-General [1997] NZCA 412; [1998] 1 NZLR 523; Egan v Canada (1995)
124 DLR (4th) 609; Andrews v Law Society of British Columbia
1989 CanLII 2 (SCC); [1989] 1 SCR 143; Law v Canada (Minister of Employment and
Immigration) [1999] I SCR 497; M v H [1999] 2 SCR 577; Lovelace v
Ontario [2000] SCC 37.
[33]
Alexkor & Government of South Africa v Richtersveld Community & Ors
CCT 19/03 Constitutional Court of South Africa 14 October 2003, at paragraph
99.
[34] Attorney-General
Foreshore and Seabed Bill 6 May 2004, at paragraphs 76, 78 and
79.
[35] Attorney-General
Foreshore and Seabed Bill 6 May 2004, at paragraphs 83 and
84.
[36] Cooke P in Ministry
of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (CA), at page 278, stated that
“[i]Inevitably there comes a point at which basic human rights have to be
seen as transcending administrative
efficiency or a current phase of
opinion. And the Canadian Supreme Court, in Singh v Minister of
Employment and Immigration [1985] 1 SCR 177, at page 218, likewise stated
that “[c]ertainly the guarantees of the Charter would be illusory if they
could be ignored because
it was administratively convenient to do
so”.
[37] See for example,
Zundel v R [1992] 2 SCR 731, at
762.
[38] See UN Committee on the
Elimination of Racial Discrimination Decision 2(54) on Australia 18/03/99
A/54/18, at paragraphs 6 to 9; and UN Committee on the Elimination of Racial
Discrimination Concluding Observations by the Committee on the Elimination of
Racial Discrimination: Australia 24 March 2000 CERD/C/56, at paragraphs 8
and 9.
[39] Speech by Hon Dr
Cullen at Human Rights Commission Speaker Forum, ‘Human Rights and the
Foreshore and Seabed’, I June
2004, at page 2. Note that clause 6 of the
Bill provides public access across and around the foreshore and seabed,
after that area has been
reached.
[40] In relation to
decisions on ancestral connection orders, and customary rights
orders.
[41] Clause 55(3) of the
Bill refers.
[42] Time limits
also raise the attendant issues of resources, for example, whether iwi and hapu
are able to afford court proceedings
in the time available.
[43] The Siracusa Principles on
the Limitation and Derogation Provisions in the International Covenant on Civil
and Political Rights
(4 HRNZ 753, 754). Relevant extracts are set out in
Appendix 4 to this
submission.
[44] The Commission
also has some concern about a potential further effect of the Bill’s
extinguishment of customary title over
the foreshore and seabed – in
relation to some negotiated settlements under the Treaty of Waitangi. For
example, the Deed
of Settlement between Te Uri o Hau and the Crown, 13 December
2000, includes a statement (in clause 1.4) that “nothing in this
Deed
extinguishes any aboriginal title or customary rights that Te Uri o Hau may have
or constitutes or implies any acknowledgement
or acceptance by the Crown that
such title or rights exist either generally or in any particular case” and
that the settlement
“is not intended to prevent any Te Uri o Hau Claimant
from pursuing claims against the Crown based on aboriginal title or customary
rights which do not come within the definition of Te Uri o Hau Historical Claims
or to prevent the Crown from disputing such claims
or the existence of such
title or rights”. We query what such clauses will mean, in any
substantive way for any coastal iwi
and hapu, should the Foreshore and Seabed
Bill be enacted.
[45]
Attorney-General Foreshore and Seabed Bill, 6 May 2004, see
paragraphs 83 to 103.
[46] A
similar right is also provided the African Charter on Human and Peoples’
Rights, and the South African Constitution. Note
that New Zealand’s UN
membership obliges respect for the Articles of the Universal Declaration, and
that this property right
has been described as an emerging international
customary law.
[47] Nihal
Jayawickrama The Judicial Application of Human Rights Law: National, Regional
and International Jurisprudence (Cambridge University Press, Cambridge,
2002) at 914, citing Shah v Attorney-General (No 2) High Court of Uganda
[1970] EA 523.
[48] Nihal
Jayawickrama The Judicial Application of Human Rights Law: National, Regional
and International Jurisprudence (Cambridge University Press, Cambridge,
2002) at 919, citing the Privy Council in Morgan v Attorney-General on
appeal from the Court of Appeal of Trinidad and Tobago (1987) 36 WIR
396.
[49] Attorney-General
Foreshore and Seabed Bill 6 May 2004, at paragraph
79.
[50] UN General Assembly
Declaration on the Right to Development 4 December 1986 Resolution
41/128, at Article 1(1) &
(2).
[51] Waitangi Tribunal
Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim Wai 22
(1988), at pages 222 to 223.
[52]
Waitangi Tribunal The Radio Spectrum Final Report Wai 776 (1999), at page
41.
[53] Tainui Māori
Trust Board v A-G and Ngai Tahu Māori Trust Board [1989] NZCA 175; [1989] 2 NZLR 513
(CA).
[54] Committee on the
Elimination of Racial Discrimination Concluding Observations: New Zealand
A/57/18 paragraph 424, 1 November
2002.
[55] See also further
analysis in Appendix 8 of the Bill’s effect on the right to development
held by others in New
Zealand.
[56] Michael King The
Penguin History of New Zealand (Penguin Books, Auckland, 2003), at page
518.
[57] 58 Alison
Quentin-Baxter, Barrister, ‘Submission on Discussion Paper “The
Foreshore and Seabed of New Zealand: Protecting
Public Access and Customary
Rights”’ 24 September 2003, at paragraph
74.
[59] See also the
alternatives canvassed in Appendix 5 to this
submission.
[60] Delgamuukw v
British Columbia [1997] 3 SCR 1010, at paragraphs 161 and 162. The test is
set out in full in Appendix 3 to this submission.
[61] The detail is provided in
Appendix 6.
[62] See, for
example, Dickson J’s decision on the Crown’s fiduciary relationship
with ‘Indians’ and the Crown’s
fiduciary obligations in
Guerin v The Queen [1984] 2 SCR 335; See also the more recent discussion
that the “Crown is subject to a fiduciary obligation to treat the
aboriginal peoples fairly”
in Delgamuukw v British Columbia [1997]
3 SCR 1010.
[63] See for example
the discussion of the Crown’s fiduciary duty to Māori under the
Treaty of Waitangi in New Zealand Māori Council v Attorney-General
[1987] 1 NZLR 641 (the “Lands”
case).
[64] Canadian Supreme
Court in R v Van der Peet [1996] 2 SCR 507, at paragraphs 2 to 3.
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