Regarding Rights

Academic and activist perspectives on human rights

‘Relationship Matters’: Constitutional Protection of Indigenous Rights in Aotearoa New Zealand

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By Fleur Adcock

Image from Fightback

Aotearoa New Zealand has recently begun a national dialogue regarding the place of Maori – its first peoples – in the country’s constitution. In February this year a Government-appointed Constitutional Advisory Panel kicked off the public consultation phase of its consideration of an array of questions concerning New Zealand’s constitutional arrangements. Topics for discussion include ‘Crown-Maori relationship matters’,[1] namely the role of the Treaty of Waitangi in New Zealand’s constitution. The Treaty, signed between representatives of Maori and the Crown in 1840, exchanged British governance for the protection of Maori rangatiratanga (self-determination). It remains the pivotal instrument around which Maori concerns regarding their rights as Indigenous peoples foment. The review also includes consideration of Maori political representation, such as the Maori electoral option that allows Maori to choose to enrol on a separate Maori electoral roll; Maori electoral participation; and New Zealand’s dedicated seats for Maori in Parliament (voted for by those on the Maori electoral roll) and on some local government bodies.

Maori and their rights do not feature prominently in New Zealand’s existing constitutional arrangements. The content of New Zealand’s constitution is drawn from a medley of sources including statutes—such as the Constitution Act 1986, Electoral Act 1993 and the Bill of Rights Act 1990—common law, and convention. Beyond select provisions concerning the functioning of New Zealand’s electoral system, all New Zealand statutes are capable of amendment by a simple Parliamentary majority helping to render New Zealand a country with ‘perhaps the weakest constitutional safeguards in the western world’.[2] Increasingly, the Treaty of Waitangi is regarded as part of New Zealand’s constitutional canon but the orthodox legal position remains that the Treaty requires incorporation into domestic statute in order to be legally enforceable; it is not a source of enforceable rights in itself.[3] With successive governments moving away from including Treaty protection provisions in statute, and no reference to Maori or the Treaty in New Zealand’s relatively weak Bill of Rights Act 1990 or the Constitution Act 1986, the rights of Maori as New Zealand’s first peoples are subject to the vagaries of the prevailing political whim. Much is often made of the Parliamentary seats guaranteed to Maori (currently 7 of 121 seats). But guaranteed minority representation across a spectrum of political parties does not translate into an ability to protect Maori rights, as the recent legislative erosion of Maori rights to the foreshore and seabed and freshwater attest.[4] In fact, the domestic insecurity of Maori rights under the Treaty and international Indigenous rights norms has prompted the concern of a host of national and international human rights actors, including the United Nations Committee on the Elimination of Racial Discrimination earlier this year.[5]

Unfortunately, the current Government-initiated constitutional review process is subject to some notable limitations that render it unlikely to secure substantive domestic protection of Maori rights. For a start, its focus is at once both too limited and too expansive. As some critics point out, the Constitutional Advisory Panel is looking at how the Treaty of Waitangi might fit into New Zealand’s existing Westminster-derived constitutional arrangements, rather than how a uniquely New Zealand constitution might be drawn out of the Treaty. Nor do the review’s terms of reference make any mention of the 2007 United Nations Declaration on the Rights of Indigenous Peoples, which New Zealand belatedly endorsed in 2010.

In a telling omission, where Maori are referenced the language of rights is avoided completely. Concerns about the focus of the Government-appointed body prompted the creation of a parallel iwi (tribe) led constitutional working group: Aotearoa Matike Mai.  This iwi-led group is engaging with Maori to develop a model constitution based on Maori protocol and custom, the Treaty and the 1835 Declaration of Independence (which asserted New Zealand’s independence under the rule of a collection of North Island chiefs). In addition, the Government-initiated review is not solely focused on constitutional protection of Maori rights as first peoples. It includes consideration of general constitutional matters too, including the size and term of Parliament, the composition of electorates, Bill of Rights issues and whether the constitution should be formalized in an Act. While important, the inclusion of these broader issues has the potential to sideline discussion on the constitutional protection of Maori and their rights.

Further, no specific action is required following the Government-initiated review. Public submissions are due to the Constitutional Advisory Panel in July. It will then report its advice to the Ministers responsible for the review by the end of the year, with the Government providing its response to the report within six months. The focus is very much on having a ‘constitutional conversation’ rather than preparing for, say, a referendum on the issue, although the New Zealand Government has indicated that any constitutional reform will need to receive broad cross-party support or pass at a referendum.

This prompts a further concern. What are the chances that Maori will be able to convince a majority of the New Zealand public that their rights as Indigenous peoples are worthy of constitutional protection? The answer is: slim. As a numerical minority (around 15 per cent of the population) against whom domestic perceptions of ‘racial privilege’ remain strong, improved (let alone adequate) protection of Maori rights as Indigenous peoples are unlikely regardless of their legitimacy. The creation of an additional constitutional review panel by a conservative think-tank anxious that the Government body plans to ‘give the tribal elite supreme power in New Zealand’[6] speaks volumes of the misunderstanding and fear that lurks just below the surface in New Zealand. Principled leadership on the issue from the reigning National Party-led Government is a long shot, with the Party only agreeing to the review to satisfy a commitment in its 2008 relationship and confidence and supply agreement with the Maori Party.

Yet for all its flaws, the review remains an opportunity to engage New Zealanders in a constitutional conversation of a type not witnessed before in the country. Although governance issues have been at the forefront of Maori discussion since the signing of the Treaty, getting a characteristically constitutionally unaware and apathetic New Zealand public to discuss these issues absent a crisis is no mean feat. There is value in having the conversation however it plays out.[7] While traction on constitutional protection of Maori rights as Indigenous peoples is unlikely now, the review may ultimately prove catalytic in securing future protection, a step that would show that ‘Crown-Maori relationship matters’ do indeed matter to the Crown.

[1] Ministry of Justice ‘Terms of Reference – Consideration of Constitutional Issues

[2] Tom Bennion and Darrin Cassidy ‘Special Rapporteur’s report taken for a spin’ (2006) 70 Mana 40, 41.

[3] Te Heuheu Tukino v Attorney General [1941] NZLR 590 (PC).

[4] For example, see the concluding observations of the Committee on the Elimination of Racial Discrimination: New Zealand UN Doc CERD/C/NZL/CO/18-20 (1 March 2013) [13], [18].

[5] Ibid [7].

[6] Independent Constitutional Review ‘Background Issues’

[7] Notable figures including Maori Party co-leader Pita Sharples and public lawyer Dr Matthew Palmer have recognized this, as cited in Adam Dudding ‘Talking about a New Zealand constitution’ (28 April 2013)

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