Saturday, July 24, 2010

UN Special Rapporteur in NZ

James Anaya, the UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People has been in New Zealand this past week and I thought it might be helpful to provide a little information about the role of the Special Rapporteur and the work of James Anaya.

The role and mandate of the Special Rapporteur is set by resolution of the United Nations Human Rights Council.  The Human Rights Council can set mandates for Special Rapporteurs, Working Groups, and Independent Experts across a range of different subject areas.  At present there are 31 of these subject-specific mandates including Special Rapporteurs on freedom of religion or belief, the right to food, and the promotion and protection of the right to freedom of opinion and expression.  The Human Rights Council may also set mandates to address situations in specific countries.  The mandate of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People was established in 2001 and extended by resolution of the Human Rights Council in 2007.  That resolution authorizes and requests the Special Rapporteur:

to examine ways and means of overcoming existing obstacles to the full and effective protection of the human rights and fundamental freedoms of indigenous people, in conformity with his/her mandate, and to identify, exchange and promote best practices;

to gather, request, receive and exchange information and communications from all relevant sources, including Governments, indigenous people and their communities and organizations, on alleged violations of their human rights and fundamental freedoms; and

to formulate recommendations and proposals on appropriate measures and activities to prevent and remedy violations.

The extended resolution also requires the Special Rapporteur

to promote the United Nations Declaration on the Rights of Indigenous Peoples and international instruments relevant to the advancement of the rights of indigenous peoples, where appropriate.

James Anaya was appointed as Special Rapporteur in 2008.  As one might expect of someone in his position, he is an internationally renowned expert in human rights law and issues relating to Indigenous peoples.  He has worked as a law professor for over twenty years and is currently the James J. Lenoir Professor of Human Rights Law and Policy at the University of Arizona.  He has written extensively on Indigenous peoples’ rights in international law, including authoring the definitive text on the subject. 

His work on the concept of self-determination – especially surrounding its development in the international law context and its relevance for Indigenous peoples today – has been hugely influential.  Anaya has argued Indigenous peoples’ engagement in international human rights fora, as entities that are ‘simultaneously distinct from, yet part of the social fabrics of the states in which they live’ has challenged the idea that the state is ‘the highest and most liberating form of human association’.  That leads to a model of self-determination that is not necessarily based around independent statehood, but is instead focused on developing modes of interaction that reflect Indigenous forms of authority as well as rights of participation in state processes.  A full list of Anaya’s academic publications is available here.

Anaya also has made a significant contribution to the recognition of Indigenous rights outside of his academic scholarship.  He was involved in the drafting of the United Nations Declaration on the Rights of Indigenous Peoples and has advised and represented numerous Indigenous groups. He was the lead counsel for the Indigenous parties in the case of Awas Tingni v. Nicaragua, in which the Inter-American Court of Human Rights in 2001, for the first time, upheld indigenous land rights as a matter of international law.

The Awas Tingni case has been extremely significant in terms of the recognition of Indigenous rights. It has been cited in various domestic and international cases including the October 2007 decision of the Supreme Court of Belize, which is well-known for also relying on the land rights provisions contained in the United Nations Declaration on the Rights of Indigenous Peoples which had been adopted by the UN General Assembly a matter of weeks before.

The Special Rapporteur plays an important role in the United Nations human rights system and Mr Anaya’s expertise and experience in this area means that he can make a valuable contribution to the discussion of Indigenous rights in the New Zealand context.

Sunday, July 4, 2010

East Coast Settlement Report

The Waitangi Tribunal has released two significant reports within the last week.  First was the Tribunal’s report on the Treaty claims of iwi and hapū of the Wairarapa ki Tararua district.  This report is the culmination of a major district inquiry and was released on 26 June 2010.  I will write a post on that report in due course, but for the moment I would like to focus on the Tribunal’s East Coast Settlement Report, which was released yesterday. 

The East Coast Settlement Report is the latest in a series of reports which address aspects of the Treaty settlement process itself.  In fact, this report provides a helpful summary of previous Waitangi Tribunal comment on Crown settlement policy.  The report also addresses the recent Court of Appeal decision in Attorney-General v Te Kenehi Mair (which was the subject of a previous post on this site).

The East Coast Settlement Report relates to the settlement negotiations that are currently under way between the Crown and Te Runanga o Ngāti Porou.  A number of claimants who submitted claims for the Waitangi Tribunal’s East Coast district inquiry did not wish to enter direct negotiations with the Crown without first going through a full district inquiry.  Some of these claimants, who claim to represent the kin groups Ruawaipu, Uepohatu, and Te Aitanga-a-Hauiti ,sought recommendations from the Tribunal that the settlement between the Crown and Te Runanga o Ngāti Porou should be delayed.  They contended that the Runanga has no mandate to negotiate the settlement of their claims and that the Crown’s recognition of the Runanga’s mandate is contrary to the principles of the Treaty.  The Tribunal held an urgent hearing of these claims in December 2009 and has now reported its findings and recommendations in the East Coast Settlement Report.

The report identifies a number of aspects of the mandating process that might have been improved upon, although the Tribunal determined that any flaws in the process were not substantial enough to warrant delaying the settlement.  The Tribunal was mindful that such a delay would significantly prejudice those who support Te Runanga’s mandate.  Furthermore, the Tribunal noted that a full inquiry was unlikely to address the many of the issues at the heart of the claimants concerns, which were really issues between Māori groups, upon which the Waitangi Tribunal has historically been reluctant to comment.

However, the Tribunal did find a number of flaws in the Crown’s Treaty settlement policy and recommended a number of changes to that policy to ensure that the settlement process is fair and that settlement agreements are durable.

These recommended changes included the following:
  • The Office of Treaty Settlements should call for submissions at the point that a proposed mandating strategy is submitted, as well as after a deed of mandate is received in order to allow ample time for interested parties to voice their concerns and for the Crown to be made aware of potential issues at an early stage.
  • The information provided as part of any mandating strategy must include: 
    • the specific claims (Wai numbers) to be included in a proposed settlement; 
    • a clear definition of the claimant community on an iwi, hapu, marae, and whakapapa basis; 
    • and the specific geographical area to be covered by a proposed settlement.
  • The Office of Treaty Settlements should, at an early stage, write to all Wai number claimants whose claims might be extinguished if a proposed settlement goes ahead, and should also assist any body that is mandated to negotiate the settlement of claims to communicate settlement milestones and developments with affected claimants.
  • The Crown should adopt a more proactive role in monitoring developments during the mandating strategy process in order to discharge its responsibilities towards claimants who may feel marginalised as a result of the process.
  • In order to lessen the likelihood of claimants seeking assistance and protection through the Waitangi Tribunal’s urgent inquiry process, the Crown must recognise that it “has a responsibility to ensure that all interested parties in a negotiated settlement have access to unhindered participation at every stage of the mandating process.”
  • The Office of Treaty Settlements should “update its policy guide, Ka Tika a Muri, Ka Tika a Mua, to reflect changes that have arisen out of the recommendations of Waitangi Tribunal reports on mandating issues and Crown settlement policy in general.