Constitutions and the UNDRIP

The 12^th session of the United Nations Permanent Forum on Indigenous Issues was held in New York at the end of last month.  As always, a wide range of issues of particular interest to Indigenous Peoples was addressed.  One of the documents tabled at this session was a paper written by members of the Forum that considered the way in which states recognised (or not, as the case may be) the United Nations Declaration on the Rights of Indigenous Peoples within their national constitutions.  This paper is a result of the Forum’s decision in 2011 to agree to undertake a study on the nature and extent of the inclusion of the human rights of indigenous peoples in national constitutions, with reference to the rights affirmed in the United Nations Declaration on the Rights of Indigenous Peoples.

The study paper provides a useful survey of the ways in which states are constitutionalizing the rights of Indigenous Peoples.  It considers specific aspects of the constitutions of Mexico, Brazil, Ecuador, Bolivia, the Russian Federation, the USA, Canada, South Africa, the Phillipines, Denmark, Uganda, India, Malaysia, Kenya, Bangladesh, Pakistan, Finland, Sweden, Nepal, Australia, and New Zealand. Some of these constitutions provide strong recognition of Indigenous Peoples’ rights, others, while still recognizing the presence of Indigenous Peoples have slightly weaker protections.

The paper also makes an interesting link between constitutional recognition and issues of identity and well-being:

Constitutional recognition is regarded as an important symbolic and substantive development that is about not only entrenchment of substantive indigenous rights but also improvement of well-being. As one indigenous leader from Australia explains: 

"I have come to think of national constitutions as the ultimate framework within which the wellbeing — or un-wellbeing — of a nation’s citizens is provided for. For it is the national constitution that defines how a society is to be governed and the place of the citizen and his or her relationship with other citizens and the country’s institutions." 

This idea has been supported by the Royal Australian and New Zealand College of Psychiatrists, which identifies an association between lack of constitutional recognition and the socioeconomic disadvantage of indigenous peoples. In particular, the College argues that recognition is a critical step to support the improvement of indigenous mental health and that the lack of acknowledgement of a people’s existence in a country’s constitution has a major impact on their sense of identity and value within the community and perpetuates discrimination and prejudice, which further erodes the hope of indigenous people.

The study paper makes eight concluding recommendations:

• Indigenous peoples should be recognized in national constitutions as such, including with specific mention of their rights. States that do not currently recognize indigenous peoples or indigenous rights in their constitutions should move towards a constitutional reform process in consultation with indigenous peoples.
• States should entrench the Declaration in national constitutions and adopt it as the framework for the development and implementation of the rights of indigenous peoples, with a special focus on article 3.
• The African Commission on Human and Peoples’ Rights should support the action of its Working Group of Experts on the Rights of Indigenous Populations/Communities in Africa by increasing its budget.
• States should engage in dialogue with one another in order to gain greater insight into the importance of recognizing the rights of indigenous peoples.
• Civil society should be more active in advocating the implementation of the Declaration.
• States should mobilize resources in order to carry out awareness campaigns and train decision makers, United Nations bodies, civil society organizations, indigenous peoples and other stakeholders in the constitutional recognition of indigenous rights.
• States should revoke existing constitutional measures that discriminate against indigenous peoples. They should include protective safeguards, in particular with regard to racial non-discrimination, in their constitutions in consultation with the indigenous peoples of their countries.
• States should adopt organic and enabling legislation, and corresponding executive, policy and programmatic action, to implement constitutional provisions that safeguard the rights of indigenous peoples, in consultation with their indigenous peoples.

The content of this paper is worth keeping in mind as we think about constitutional issues in the New Zealand context, with the government consideration of constitutional issues and the independentconstitutional working group (Aotearoa Matike Mai) currently engaging with people on constitutional issues through two quite distinct processes.

Te Ture Whenua Māori Act 1993 Review Discussion Document

Today, the government released Te Ture Whenua Māori Act 1993 Review Discussion Document. This document sets out the findings and recommendations of the panel established to look at ways of improving Te Ture Whenua Māori Act 1993, which is the central piece of legislation that governs the administration of Māori land.  The discussion document seeks feedback on five key propositions:

Proposition 1: Utilisation of Māori land should be able to be determined by a majority of engaged owners

An engaged owner is defined as an owner who has actively demonstrated their commitment to their ownership interest by exercising a vote either in person or by proxy or nominee. Engaged owners should be able to make decisions (excluding sale or other permanent disposition) without the need for endorsement by the Māori Land Court.

Proposition 2: All Māori land should be capable of utilisation and effective administration

Where owners are either not engaged or are unable to be located, an external manager
or administrator may be appointed to manage under-utilised Māori land. The Māori Land Court should have a role in approving the appointment and retaining oversight of external administrators.

Proposition 3: Māori land should have effective, fit for purpose, governance

The duties and obligations of trustees and other governance bodies who administer or manage Māori land should be aligned with the laws that apply to general land and corporate bodies. There should be greater consistency in the rules and processes associated with various types of governance structures.

Proposition 4: There should be an enabling institutional framework to support owners of Māori land to make decisions and resolve any disputes

Disputes relating to Māori land should be referred to mediation in the first instance. Where the dispute remains unresolved following mediation, it may be determined by the Māori Land Court.

Proposition 5: Excessive fragmentation of Māori land should be discouraged.

Succession to Māori land should be simplified. A register should be maintained to record the names and whakapapa of all interests in Māori land, regardless of size.

The discussion document is available here.  There is to be a round of consultation hui on this document through April and May.  Written submissions are due on 17 May 2013, and can be sent to TTWMA@tpk.govt.nz or Te Ture Whenua Maori Act Review Panel, c/o Te Puni Kokiri, PO Box 3943, Wellington.

Three quick points about yesterday’s Supreme Court decision

Yesterday the Supreme Court issued its decision in NewZealand Māori Council v Attorney-General and dismissed the Māori Council’s appeal in relation to the proposed partial privatisation of Mighty River Power. As has been widely reported, the result of the Supreme Court decision is that the Government can now proceed with the sale of shares in Mighty River Power.  There will no doubt be plenty of analysis and comment on this decision, but I just wanted to touch on three interesting points that struck me when I was reading the Court’s judgment.

Treaty principles reinforced

Even though the outcome of the Supreme Court decision is the same as the outcome of the High Court decision, the Supreme Court overrules one key aspect of Justice Ronald Young’s reasoning.  Justice Young found that the proposed sale of shares in Mighty River Power was not subject to an action in judicial review that is based on consistency with the principles of the Treaty of Waitangi.  However, the Supreme Court disagreed, drawing for support on the approach of the Court of Appeal in the 1987 SOE case:

The Court of Appeal’s recognition that s 9 stated a fundamental principle guiding the interpretation of legislation which addressed issues involving the relationship of Maori with the Crown, must accordingly form the basis of the approach of New Zealand courts to any subsequent legislation requiring that the Crown act consistently with Treaty principles. The judgment gives no support to narrow approaches to the meaning of such clauses. In re-enacting the identical provision to act consistently with Treaty principles, in the mixed ownership companies legislation, Parliament’s purpose is that the Treaty provisions in Part 5A carry the broad meaning, and be given the broad application reflected in the judgments of the Court of Appeal concerning s 9 in the SOE case. The Parliamentary purpose is clear: s 45Q must receive the same interpretation as s 9 of the State-Owned Enterprises Act has received, particularly from the Court of Appeal in the SOE case, and also from the Privy Council in New Zealand Maori Council v Attorney-General (Broadcasting Assets case). Section 45Q brings with it the heritage of s 9 and this Court, reflecting what is the purpose of Parliament, must invest it with equivalent significance. It is on that basis that we address the arguments of counsel concerning the legislation.

Consequently, the Supreme Court determined that decisions in relation to the sale of shares in Mixed Ownership Model companies can be challenged on the basis of inconsistency with the principles of the Treaty of Waitangi.  This is, I think, an important re-strengthening of Treaty principles.

Redress and material impairment

Nevertheless, the Court went on to conclude that, because there was no ‘material impairment’ to the Crown’s ability to recognise Māori rights or provide redress, the sale of shares would not be inconsistent with Treaty principles.  The Court sets out its approach to this issue as follows:

As is apparent, we are prepared to accept that privatisation may limit the scope to provide some forms of redress which are currently at least theoretically possible. But in assessing whether this amounts to “material impairment”, regard must be had to (a) the assurances given by the Crown, (b) the extent to which such options are substantially in prospect, (c) the capacity of the Crown to provide equivalent and meaningful redress, and (d) the proven willingness and ability of the Crown to provide such redress.

I understand the Court’s view that most of the options for rights recognition and redress will still be at least theoretically possible after the sale of shares in Mighty River Power.  However, given that the sale of shares will rule out the possibility of at least some forms of redress that are currently possible (though perhaps unlikely), I wonder whether the agreement of Māori should be sought before those options are removed.  That approach would seem to me to be consistent with the way in which the protection mechanism was agreed between Māori and the Crown following the SOE case.  If, for example, the ‘shares-plus’ scheme was seen by Māori to be the only way of effectively recognising their interests in water bodies, is it consistent with Treaty principles for the Crown to give up its ability to provide that redress without at least entering into some discussion about the issue with Māori?

Consultation

Which leads to the issue of consultation.  The Supreme Court accepted that consultation with Māori was necessary following the Waitangi Tribunal’s Freshwater report, but noted that consultation occurred and was adequate:

The fact that the Crown ultimately rejected the Waitangi Tribunal suggestion as inappropriate is not a basis from which it can be inferred that the consultation was empty or pre-determined. Indeed, this complaint is difficult to separate out from the substantive issue of Treaty compliance in the privatisation. If the Crown was justified in considering that the privatisation did not set up an impediment to recognition of Maori interests in water, it is difficult to infer that the consultation was inadequate simply from the fact that the idea of “shares plus” was rejected and there was no change in the Crown’s proposal as a result. For these reasons, we consider there is nothing in the consultation point that is not resolved with the substantive issue of whether the sale of shares was consistent with the principles of the Treaty.

As I have noted previously (see here and here), I have had real concerns about the way in which consultation has been undertaken in relation to the Government’s partial privatisation programme.  I accept that the technical requirement of consultation may have been met, and therefore understand the Supreme Court’s decision on this point.  However, what this does suggest to me is that bare requirements of consultation are not likely to be of much help to Māori when it comes to issues such as this.