Ka kuhu au ki te ture hei matua mō te pani

I seek shelter in the law, for it is a parent to the oppressed

- Te Kooti Arikirangi Te Turuki (c.1832-1893)

Sunday, March 28, 2010

UVic’s Proposed Bachelor of Indigenous Laws

The Faculty of Law at the University of Victoria (British Columbia) has been developing proposals for a Bachelor of Indigenous Laws.  A draft proposal paper was circulated recently which sets out the thinking behind this program and the considerable work that has gone into its development.  As stated in the draft proposal paper, the basic idea is as follows:

The program will teach Indigenous legal orders and the common law in parallel so that, at the end of four years, students attain professional degrees in both.  The program will work between the two sets of traditions, comparing them, using one to illuminate the other, exploring points of connection and possible relationship.  The program will explore the rich content and processes of Indigenous traditions, teaching them in collaboration with the communities themselves.

So, at the end of a four year program of study, students would graduate with two professional law degrees an LLB (in the common law traditions) and a BIL (Bachelor of Indigenous Laws).

I thought it might be useful to point to some of the key aspects of this very exciting project.

The draft proposal paper identifies four reasons why such a program is needed.  First, the paper notes that while many courts and legislatures have started to recognize the importance of Indigenous legal orders, engagement with Indigenous law is ad hoc and sporadic and, therefore, “those arguing for Indigenous norms carry a heavy burden, forced to fashion solutions from first principles in contexts that lack developed engagement with Indigenous orders.  Second, the paper notes the powers of self-government that Indigenous peoples exercise and the “clear trend towards dismantling paternalistic institutions, placing those institutions under Indigenous control” and the need for understanding of Indigenous forms of social ordering in the design and operation of governance structures.  Thirdly, the paper suggests there is a need for such a program to support the development of Indigenous solutions to the social and economic disadvantage faced by many Indigenous peoples.  The final reason that this program is needed that is noted in the draft proposal is the need to develop models for engagement across Indigenous and non-Indigenous legal traditions and structure the interface between them to achieve more fruitful and productive relationships.

One of the most impressive things about the proposal is that is draws on the long experience that the University of Victoria has in relation to Indigenous legal education.  The program builds on the expertise of the law school’s faculty members in relation to Indigenous legal issues and the emphasis on the provision of legal education to Indigenous students, but also the experience the university has gained through the Akitsiraq law school (which delivered a law degree to a single cohort of students in the Inuit territory of Nunavut - information about a second Akitsiraq program, to be offered by the University of Ottawa and the Akitsiraq Law School Society, can be found here), two intensive summer programs in Indigenous legal traditions, and community relationships built through initiatives such as the annual Aboriginal Awareness Camp and the Ethnohistory Field School run by the university’s Department of History in collaboration with the Sto:lo people.

There are also several important aspects of the structure of the proposed program that should be noted.  Several courses within the program will be taught “trans-systemically.” This is an approach which is used in teaching common law and civil law at McGill University in Montreal, Quebec.  The draft proposal paper explains the basic idea of teaching a course trans-systemically:

the subject matter of that course (e.g. Constitutional Law, Contract Law, Family Law, the law of Business Associations) will be taught across two traditions simultaneously, so that students will tack back and forth between them, comparing them, each illuminating the other.

One other extremely important aspect of the proposed program is the field school component.  Students in the program will participate in two field schools, “situated within the legal orders studied in their trans-systemic courses”, during the final two years of their degree.  The idea of the field schools is that they will combine “set instruction with experiential learning, including work of value to each community”.  During these field schools, some students will work with lawyers who serve Indigenous communities, some will work with elders (as the traditional keepers of the law), assisting with matters such as the development of appropriate legal structures, the operation of tribal courts, or other relevant projects. The experience gained through the field school will be shared with the community through various round-tables and community forums.

I think this is shaping up to be a very exciting program.

Sunday, March 21, 2010

Māori and Treaty issues in NZ's report to the Human Rights Committee II


Following on from my previous post, the UN Human Rights Committee issued a press release following its meeting last week to consider New Zealand’s report on human rights protected by the International Covenant on Civil and Political Rights.  As was evident from their prior written questions, members of the Committee were interested in a number of specific areas of New Zealand’s performance in relation to human rights matters.  In particular, the Committee raised questions about criminal justice, domestic violence, asylum seekers and immigration issues, counter-terrorism measures, and issues relating to the Treaty of Waitangi and the status of Māori.  Though many of these areas have implications for Māori, it is this last set of issues that I would like to address in this post.

The Committee’s press release notes:

Several experts [that is, members of the Committee] took exception to the New Zealand delegation’s claim that consideration of the Waitangi Treaty of 1840 was built into the country’s law-making process, underlining that the Treaty’s translations – and, thus its very meaning – remained unsettled, even contentious.  To that end, Helen Keller, expert from Switzerland, stressed that a “consultation process” regarding land and water rights legislation was not the same as seriously integrating the views and concerns of the Māori in the decision-making process.

Ms Keller also asked whether New Zealand intended to accept the Declaration on the Rights of Indigenous Peoples.  Simon Power, responding on behalf of the New Zealand delegation indicated that work was ongoing on the issue of the Declaration and the New Zealand Government’s possible support for it.  He also noted that the rights recognized in the Declaration had been supported in New Zealand for many years.  If that is the case, one might wonder why the New Zealand Government has such difficulty with the idea of supporting the Declaration (as mentioned in my previous post, Claire Charters has provided a very useful consideration of the Government’s position).

Picking up on the question of uncertainty, another Committee member suggested that the divergent views on translations of the Treaty of Waitangi indicated that the Government might merely be paying “lip-service” to the participation of Māori in public decision-making.  This issue of certainty in relation to the meaning of the Treaty is a central concern of Matthew Palmer’s recent book, The Treaty of Waitangi in New Zealand’s Law and Constitution, which provides a very helpful analysis of the problems associated with different forms of uncertainty associated with the legal status and effect of the Treaty.

Another Committee member noted that, while he was encouraged by the Government’s attitude to the Treaty of Waitangi, he had some concerns about the Treaty settlement process.  These concerns appear to relate to the issue of agreeing settlements without sufficient regard to the claims of dissenting or opposing groups (aspects of which I have touched on in previous posts, here, here, and here).  The Committee member urged the Government to aim for truly negotiated solutions rather than merely “clinching the deal”.

The New Zealand delegation was also asked whether any of their ten members were themselves Māori.  I’m not sure what the response to that was, but that in itself might provide an interesting indication of how important the Government perceives the participation of Māori in public processes!

Monday, March 15, 2010

Māori and Treaty issues in NZ's report to the UN Human Rights Committee

As part of its monitoring role, the United Nations Human Rights Committee will this week be considering New Zealand’s performance in relation to the recognition of civil and political rights.  As a signatory to the International Covenant on Civil and Political Rights, New Zealand submits periodic reports to the Committee, setting out how it is addressing its obligations under the Covenant.  This process is focused specifically on the rights identified in the Covenant and so is not as broad an inquiry as last year’s Universal Periodic Review. That is a relatively new process, which covers all international human rights obligations of participating countries.  This week’s meeting is therefore unlikely to raise wider issues such as New Zealand’s position in relation to the Declaration on the Rights of Indigenous Peoples.  That was canvassed as part of the Universal Periodic Review and has also been noted by the Aotearoa Indigenous Rights Trust in their submission to the Committee [for a discussion of the issues relating to the Declaration, see this video, and the resources collected here, and especially this article by international law scholar Claire Charters].  However, the Committee has asked New Zealand to respond to a number of specific issues, several of which directly relate to Māori and/or the Treaty of Waitangi, and which will no doubt be the subject of further discussion at this week’s meeting.

In relation to the principle of non-discrimination set out in Articles 2 and 26 of the Covenant, the Committee asked New Zealand to provide information about the measures that have been taken to mitigate the discriminatory effects of the Foreshore and Seabed Act 2004.  In particular, the Committee was interested to know whether a consultation mechanism with Māori had been established.  In response, New Zealand has submitted information about the review of the Foreshore and Seabed Act and the review panel’s recommendations, ultimately noting that “On 2 November 2009, the Government announced that it is likely that the Foreshore and Seabed Act would be repealed.  No decisions have been made about what will replace it.”

The Committee was also concerned about the high levels of Māori incarceration and asked what measures New Zealand was taking to address that issue. New Zealand’s response acknowledges that “at this stage no specific targets or timelines have been set for reducing the relatively high proportion of Māori in prison” but goes on to note that “the Drivers of Crime work programme will involve development of measures of effectiveness of interventions for Māori including reducing recidivism and the prison population”.  The response also notes that the Department of Corrections now has a Māori Services Team and “provides a number of programmes and services specifically aimed at reducing re-offending through the use of tikanga Māori (customary Māori) concepts and values”.
In relation to the Treaty of Waitangi, the Committee asked the following:

What measures does the State party envisage taking to incorporate the Treaty of Waitangi in domestic law? Please indicate whether a mechanism to settle comprehensively land claims of indigenous peoples, consistent with the Treaty of Waitangi and with the Covenant rights, has been created. Please also indicate whether the Waitangi Tribunal has been provided with increased financial resources.

The response to that set of questions notes the incorporation of Treaty principles into specific pieces of legislation (such as the Conservation Act 1987, the Resource Management Act 1991, the Education Act 1989, and the Crown Minerals Act 1991).  The response also points to the role of the Waitangi Tribunal and sets out information about the progress of the settlement of claims made under the Treaty of Waitangi.  In order to address the particular question about the resourcing of the Waitangi Tribunal, the response states “The Waitangi Tribunal received an increase in funding in 2007 and its current total operating expenditure is $12.15 million.  The Government is satisfied that the current level of funding is sufficient for the Tribunal to carry out its functions”.

It will be interesting to see what further comment the Human Rights Committee will choose to make on these and other issues.  In any case, unlike Professor Paul Moon, I think it is extremely beneficial for the Committee to bring attention to these issues and to expect New Zealand to implement measures that give full effect to internationally recognized human rights.

Sunday, March 7, 2010

Justice and 'special treatment'


At the recent ACT Party conference, Dr Muriel Newman delivered an address in which she suggested that the Party could help to heal “the racial divide” by opposing “Māori privilege”. It included the simplistic call for “one law for all” and explicitly recalled Don Brash’s 2004 Nationhood speech.  As media commentator Russell Brown has pointed out on his blog, we should not be surprised to hear extreme views from Dr Newman.  But there are strands of Dr Newman’s thinking that form part of the more mainstream discussion of Māori rights and Treaty of Waitangi issues that I think it would be helpful to address.

For example, there seems to be a broad consensus in New Zealand that it is fair to provide redress for historical breaches of the Treaty of Waitangi.  But this often comes with the qualification (implicit or explicit) that once historical claims are dealt with we can put all this Treaty business behind us.  Any continuing recognition of distinct Māori or Treaty rights would not be “one law for all” and would be, exactly as Drs Newman and Brash have articulated, an unacceptable “Māori privilege”. It was precisely this sentiment that led the previous Government to back away from its ‘Closing the Gaps’ policy.  The same sentiment was at the heart of the Prime Minister’s Waitangi Day speech.  That speech was entitled ‘Beyond Grievance’ and repeatedly referred to the theme of ‘moving on’, once fair settlements for historical claims have been concluded.  As I have noted previously, achieving just and durable settlements expeditiously is to everyone’s advantage.  But removing the sense of grievance associated with historical wrongs does not end the Treaty relationship nor remove the ongoing obligations of the Treaty partners to each other.   Yet according to the Prime Minister, only an extremist intent on division would suggest that the Treaty should play a continuing role in decision-making and the exercise of public power.

The difficulty with that approach is that it relies on a very narrow view of justice. In this context it is useful to consider the work of the feminist theorist, Nancy Fraser, who, in her 1997 book, Justice Interruptus, explored the connection and tension between the need to address different types of injustice in reparations and reconciliation processes. Fraser argues that justice requires both economic equality and cultural recognition and has considered ways in which these two objectives of justice can be integrated.  Fraser distinguishes between these two justice objectives, or, as she describes them, ‘socioeconomic’ justice and ‘cultural-symbolic’ justice.

Fraser conceptualizes socioeconomic injustice, in a general sense, as “informed by a commitment to egalitarianism”. It is injustice that derives from the “political economic structure of society” and includes all forms of economic exploitation, marginalization, and dispossession. On the other hand, cultural-symbolic injustice is more closely associated with identity-based claims.  Fraser identifies cultural-symbolic injustice as being rooted, not in political-economic structures, but rather in “social patterns of representation, interpretation, and communication”. This type of injustice is connected to cultural domination, disrespect, nonrecognition, misrecognition, and denial of recognition.

Fraser sees the distinction between socioeconomic injustice and cultural-symbolic injustice as vitally important because the strategies that are employed to address one type of injustice are often in conflict with strategies that address the other form of injustice. One form of injustice requires redistribution, a leveling of the playing field to achieve a kind of ‘sameness’, while the other form of injustice calls for measures that recognize difference.  This is particularly important to understand in the context of Indigenous Peoples’ justice claims because Indigenous Peoples tend to have simultaneously experienced both types of injustice.  For example, Māori communities have suffered socioeconomic injustice by being dispossessed of much of their lands and natural resources.  They have also suffered cultural-symbolic forms of injustice by the implementation of legislation and policies that have prohibited their cultural practices and had serious and detrimental effects on their language. 

In other words, dealing with historical Treaty breaches is only one part of the justice equation.  If the agreements which settle historical Treaty claims are to be just and durable and contribute to genuine reconciliation then they must be coupled with measures which address the ongoing role of the Treaty in New Zealand public life.  Which is why it would be unfortunate if such measures continue to be characterized as some form of ‘Māori privilege’ or ‘special treatment’.  Far from healing racial division, such a characterization seems more likely to undermine the reconciliation project.