Tuesday, April 27, 2010

New Zealand's Support for UNDRIP

Last week it was announced that New Zealand would support the United Nations Declaration on the Rights of Indigenous Peoples.  This is an important step forward and it was increasingly becoming untenable for New Zealand to maintain its opposition when Australia and the USA, under new, more progressive administrations, were revising their position on the Declaration.  Canada, the fourth of the opposing countries, is now also reported to be moving towards acceptance of the Declaration.  Even though this is an incredibly important step, the New Zealand government’s announcement represents a rather strange form of support.  Various members of the Government, from the Prime Minister down, have been at pains to play down the significance of New Zealand’s support for the Declaration, mostly suggesting that it would have no practical effect.  New Zealand’s statement of support does contain a number of caveats, but the Declaration will, undoubtedly, influence New Zealand law, as former High Court Judge Sir Edward Durie and public law expert Mai Chen have both pointed out.

New Zealand’s statement of support for the Declaration, and in particular, the qualifications contained within that statement, generally reflect the objections that were raised by the previous Government at the time the Declaration was adopted by the General Assembly.  As noted in a previous post, anyone looking for an accessible overview of the Declaration and an analysis of the New Zealand government’s concerns could do no better than to read this article by Claire Charters.  Those interested in this issue may also wish to listen to this interview with Aboriginal legal scholar Megan Davis that aired on ABC radio shortly after Australia had announced its decision to support the Declaration.  And for more detailed general information about the Declaration, see the recently published collection of essays edited by Claire Charters and Rodolfo Stavenhagen, Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples.  As always, Peace Movement Aotearoa also has a helpful collection of resources that are accessible via their website.

[UPDATE: See also Claire Charters' recent comments here]

The New Zealand government seems to be particularly concerned about the articles of the Declaration that relate to self-determination, rights to land and resources, and involvement in decision-making.  As noted above, these reflect the concerns expressed by the previous government and Claire Charters’ article explains why the fears around these provisions are misplaced.  I thought it might be useful here to draw attention to aspects of the government’s statement of support that relate to the Treaty of Waitangi claims settlement process and the provisions in the Declaration that address rights to lands and resources.

There are three important articles in the Declaration which relate to Indigenous peoples’ rights to lands and resources:

Article 26
1.            Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2.            Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3.            States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 27
States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 28
1.            Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
2.            Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

The New Zealand government’s statement of support notes:

…where the Declaration sets out aspirations for rights to and restitution of traditionally held land and resources, New Zealand has, through its well-established processes for resolving Treaty claims, developed its own distinct approach…Redress offered in Treaty settlements is, however, constrained by the need to be fair to everyone and by what the country as a whole can afford to pay.

The New Zealand government appears to be trying to say that it will support the rights set out in the Declaration, so long as it doesn’t require it to do anything differently.  In particular, the government seems to think that the Treaty of Waitangi claims settlement process should continue unchanged, even if it is inconsistent with the rights set out in the Declaration.  I am not sure how that process can be expected to contribute to meaningful reconciliation if it proceeds on that premise.  Then again, it may well be that, despite the government’s qualifications, the Declaration becomes a much more influential instrument than some of the commentary has suggested. 


Saturday, April 17, 2010

West Moberly First Nations v British Columbia

There was an interesting decision relating to treaty rights and consultation, which came out of the British Columbia Supreme Court recently.

The West Moberly First Nations sought a judicial review of the British Columbia government’s decision to allow mining activity (an “advanced exploration program”) on land that is subject to Treaty No. 8 (one of Canada’s numbered treaties with Indigenous groups).  Of specific relevance to this case is the guarantee of traditional caribou hunting rights contained in Treaty No. 8.  The West Moberly nations were particularly concerned that the exploration program and the associated clearing of forest in an area of caribou habitat would have a harmful effect on the caribou herd in that area.  They argued that, in making the decision to allow the mining activity, the Crown had failed to consult adequately with respect to their hunting rights and had ultimately failed to reasonably accommodate the rights.

The Crown accepted it had a duty to consult with the West Moberly First Nations but submitted that it had done so and had, as a consequence, taken measures to reasonably accommodate the treaty-protected hunting rights.  One line of argument pursued by the Crown was that the guarantee in Treaty No. 8 is a general right to hunt for meat in the area covered by that treaty, not a specific right to hunt caribou in the affected area.  The court, however, found that ‘It is not an accommodation to say “hunt elsewhere”.’
Furthermore, a range of measures that were proposed to minimize or mitigate the effect on the caribou habitat were found to be inadequate consultation because they did not comprise part of a wider plan for rehabilitation and recovery of woodland caribou numbers.  The absence of a recovery plan had been a long-standing concern of the West Moberly nations and was suggested by them as a reasonable accommodation and the judgment notes that the government’s failure to put in place an active plan for protection and rehabilitation of this caribou herd was a failure to accommodate reasonably.

In this case, Justice Williamson determined that, rather than quash the decision to permit the exploration program, an appropriate balancing of rights would be achieved by suspending the effect of the instruments that would permit the exploration program and associated habitat interference for 90 days “to permit and to mandate a proper accommodation of West Moberly’s concerns”.  His judgment went on to note that “This accommodation should be the expeditious implementation of a reasonable, active, program for the protection and augmentation of the Burnt Pine herd.”

This decision may yet be appealed, though it is nevertheless being cautiously welcomed as, potentially, a significant win for the First Nations involved and for the effective protection of treaty rights more generally.

Sunday, April 11, 2010

Foreshore and Seabed Review: 12 Important Documents

Given that the government is currently seeking submissions on its proposals in relation to the Foreshore and Seabed Act, I thought it might be useful to gather together links to some key documents relating to the foreshore and seabed issue.
So, here are 12 important documents:
  1. Reviewing the Foreshore and Seabed Act 2004 - the Government's consultation document, released 31 March 2010;
  2. Pākia ki Uta, Pākia ki Tai - Report of the Ministerial Review Panel, 30 June 2009;
  3. Foreshore and Seabed Act 2004;
  4. Report on the Crown's Foreshore and Seabed Policy - Waitangi Tribunal report, 2004;
  5. Ngāti Apa v Attorney General - Court of Appeal decision, 2003;
  6. Report of the UN Special Rapporteur, 2006;
  7. Ngā Hapū o Ngāti Porou Foreshore and Seabed Agreement, 2008;
  8. Decision of the UN Committee on the Elimination of Racial Discrimination in relation to the Foreshore and Seabed Act 2004 - March 2005;
  9. Attorney-General's Report on the consistency of the Foreshore and Seabed Bill with the New Zealand Bill of Rights Act 1990 - May 2004;
  10. 'Commentary on the Crown's Consultation Document' - Iwi Leaders Group, 31 March 2010;
  11. 'Tipuna Title as a Tikanga Construct re: the Foreshore and Seabed' - paper written by Moana Jackson explaining the concept of "tipuna title", March 2010;
  12. A primer on the government consultation document 'Reviewing the Foreshore and Seabed Act 2004' - Moana Jackson, 7 April 2010.
For further materials, see the website of Peace Movement Aotearoa, which provides a comprehensive collection of links to decisions, documents, commentaries and media reports relating to the foreshore and seabed.

Sunday, April 4, 2010

Foreshore and Seabed Proposals

The government released a discussion document this week that seeks submissions on its proposals for the replacement of the Foreshore and Seabed Act 2004.  The discussion document sets out four basic options for the ‘ownership’ of the foreshore and seabed, though most of the detail focuses on features of the government’s preferred option of the foreshore and seabed becoming an area of ‘public domain’.  The proposals are, without doubt, an improvement on the 2004 Act but they fail to address substantively many of the problematic aspects of that Act.

The four options for ownership of the foreshore and seabed that are identified in the discussion document are:
  1. Crown notional title – Crown acts as interim owner until customary title is investigated, with property rights being confirmed in Māori or the Crown on a case-by-case basis;
  2. Crown absolute title; 
  3. Māori absolute title; and 
  4. Public domain/takiwā iwi whānui – no one would own the foreshore and seabed (except existing land held in private title.  Specific roles and responsibilities in relation to the foreshore and seabed would be allocated depending on the existence of customary rights and other interests.
As noted above, the government’s preference is option 4 – under which the foreshore and seabed would become public domain.  The reasons provided in the discussion document for favouring the public domain option are not entirely convincing. In particular, there is no explanation of why Māori absolute ownership is “unlikely to allow the interests of all New Zealanders to be balanced”.  The shift from Crown ownership (as per the current legislation) to ‘public domain’ seems to me to be largely cosmetic.  Nevertheless, I accept that this is, at least, an important symbolic statement. 

While no one would be able to own the foreshore and seabed, various rights and interests less than freehold title would be recognized under the government’s proposals.  Similarly to the existing legislation, the government is proposing that two types of customary interests be recognized: 
  1. territorial interests - “customary interests that are territorial in nature and extent”; and 
  2. non-territorial interests – “customary uses, activities and practices”. 
Under the proposed replacement legislation, if such interests are proved, specific awards would be available to protect those interests.  These awards would primarily provide a greater role in environmental management for iwi or hapū with a proven customary interest.  These awards are by no means insubstantial.  As the Ngāti Porou agreement illustrates, these types of outcomes may be available at present, though there are no guarantees that all iwi or hapū with customary interests could achieve the same outcome through negotiations with the Crown.  The requirements of proving a customary interest would also be less demanding under the government’s proposals and having an identified range of ‘awards’ to draw on would be helpful for all concerned.  The proposal to include reference to tikanga Māori in the tests to recognize customary interests would also be a significant improvement, though this is still a long way from the advocated recognition of tipuna title

And the possibility, that existed after the Ngāti Apa decision, of being awarded exclusive title would not be re-instated under these proposals.  The discussion document notes that Canadian common law and Te Ture Whenua Māori Act 1993 both allow for the award of exclusive title where the requisite customary interest has been proved but the discussion document goes on to state “The government does not support these awards because they do not provide for a role in environmental management processes”.  It is not clear why it is thought that one type of award should preclude the other, nor whether the views of Māori have been sought as to which type of awards would be preferred by Māori.

So fundamental problems still remain with the government’s proposals.  The proposals would exclude existing private title, just as the current legislation does.  Consequently, it would remain the case that only Māori property rights would be affected.  So, the discriminatory aspect of the current legislation that has been criticized by various human rights bodies is not addressed.  There is also the central problem, identified by both the Waitangi Tribunal and the Ministerial Review Panel, that the current regime takes away Māori property rights and replaces them with lesser rights.  The government’s proposals make those lesser rights easier to achieve, but it still appears that property rights are to be substituted, largely, by the opportunity to participate in administrative processes.

The proposals are certainly an improvement on the Foreshore and Seabed Act 2004.  But then, almost anything would be.  It is difficult to discern in these proposals any real shift in the Crown’s attitude to Māori interests in the foreshore and seabed.