Friday, December 6, 2013

Advisory panel report hardly furthers 'constitutional conversation'

Yesterday the final report of the Constitutional Advisory Panel was released by the responsible Ministers.  It is difficult to see what the report adds to a process of constitution-building in Aotearoa. The report mostly identifies that there are a range of opinions on various technical issues and that more public education about constitutional and civic matters is necessary.  This is hardly news. I should add that I do not intend this as any criticism of the Constitutional Advisory Panel itself. The terms of reference that were set for the Panel virtually ensured that this would be the case.

The Panel deals with two areas that specifically relate to Māori:
  • The Crown-Māori relationship (essentially, the place of the Treaty of Waitangi); and
  • Māori electoral representation.

In both areas, the Panel’s report identifies that there are effectively three options: Strengthen or enhance the existing mechanisms, maintain the status-quo, or remove the existing mechanisms. 

In the case of the Treaty the Panel’s report describes two models that would strengthen, to various degrees, the role of the Treaty in our constitution (‘A Treaty-based constitution’ and ‘Take active steps to accommodate Treaty rights and obligations’), one model that effectively represents the status quo (‘Maintain development of existing arrangements to accommodate Treaty rights and obligations’), and one model that removes the Treaty altogether (‘A constitution without the Treaty’):
A Treaty-based constitutionOne option discussed in the Conversation was to discuss placing the Treaty and Treaty relationships at the centre of our constitutional arrangements, rather than attempting to graft them onto existing Westminster arrangements. Models could be drawn from previous attempts by Māori to establish autonomous structures and from a range of international examples including Canada, Bolivia, Norway and the United Kingdom. Take active steps to accommodate Treaty rights and obligationsA range of different options to more proactively recognise the Treaty within the existingconstitutional arrangements were raised during the Conversation, including:
  • confirming the Treaty as a tool for interpretation, rather than having legal or constitutional force. For example, the Treaty might be added to or referred to in a preamble to the Constitution Act 1986
  • making the Treaty one of the standards for good process – the courts could test process rather than outcomes against the Treaty
  • making consistency with the Treaty a required consideration in all legislation and government action, for example by making the Treaty supreme law, perhaps along with the rights in the Bill of Rights Act 1990.
  • The requirements could be given force by: 
    • establishing a dedicated Treaty court, or increasing the jurisdiction of the Waitangi Tribunal or the general courts, with powers to assess whether legislation is consistent with Treaty principles 
    • creating an upper ‘Treaty’ house in Parliament with 50% Māori membership 
    • entrenching Treaty rights to reduce their vulnerability to change.
 Maintain development of existing arrangements to accommodateTreaty rights and obligationsThis option would preserve the current institutions and mechanisms of government. Most Treaty matters would be settled by negotiation between the Government and iwi as the need arises, with the ability to refer specified issues to the courts for resolution if necessary. 
This option may be supported by people who see the principles and text of the Treaty as important elements of the constitution but do not consider the Treaty discourse is fully developed enough to include it in a written constitution. In the conversations, some Māori supported this view on the basis that the Treaty is sacrosanct and should be left alone. It would sit outside the legal system in much the same way as does the American Declaration of Independence in relation to the American Constitution, yet its principles inform the development of the law and the nation’s constitutional values. A constitution without the TreatyThe Panel acknowledges that many New Zealanders remain sceptical that the Treaty can be a constructive element of our constitution and so may be reluctant to participate in a conversation about its future. Based on the Conversation, however, the Panel believes it is not viable to wind back the clock. The Treaty is already a fundamental element of our constitutional arrangements. It would be unfair, unjust and unrealistic to go back on the commitments made to iwi and hapū by successive governments. Nor do the arguments of equality put forward by some proponents of this view sufficiently acknowledge the diversity of this country’s people. The Treaty is not inherently divisive – its purpose was to establish a relationship between two peoples in one nation. Any divisions arise from a failure to meet those obligations, not from meeting them. The question is not just whether the Treaty is part of the constitution, but how it is best reflected and what we want to achieve by reflecting it. The Crown cannot turn back on the commitments made in the Treaty and subsequently without the risk of social and political tensions. Any decisions made in such a crisis situation are unlikely to be enduring.
This leads the Panel to make the following recommendations:
The Panel recommends the Government:·      continues to affirm the importance of the Treaty as a foundational document
·      ensures a Treaty education strategy is developed that includes the current role and status of the Treaty and the Treaty settlement process so people can inform themselves about the rights and obligations under the Treaty
·      supports the continued development of the role and status of the Treaty under the current arrangements as has occurred over the past decades
·      sets up a process to develop a range of options for the future role of Treaty, including options within existing constitutional arrangements and
arrangements in which the Treaty is the foundation·      invites and supports the people of Aotearoa New Zealand to continue the
conversation about the place of the Treaty in our constitution.
I have no problem with the Panel addressing these models at a relatively high-level and I am pleased to see that the Panel confirmed that the Treaty does have a place within our constitutional arrangements.  However, I fail to see how the report’s observations or the bland recommendations that have been proposed take us any further forward in a constitutional conversation than we were a year or so ago - or even ten years ago, for that matter. 

Wednesday, October 23, 2013

Legal significance of the UNDRIP

The Special Rapporteur on the Rights of Indigenous Peoples yesterday submitted his annual report to the United Nations General Assembly.  This will be the final such report to the General Assembly to be presented by the current Special Rapporteur, James Anaya, as his term as Special Rapporteur will end in April 2014.  This report provides an interesting reflection on the Special Rapporteur’s work over the six years that Anaya has been in the role.
He concludes his report with some key recommendations aimed at encouraging more effective and more comprehensive implementation of the UN Declaration on the Rights of Indigenous Peoples. Some of these recommendations are particularly relevant to the New Zealand context.
The Special Rapporteur points out that States’ descriptions of the Declaration as non-binding or ‘aspirational’ are not only unhelpful but also misleading. Prime Minister John Key has consistently characterized the Declaration in this way.
However, the Special Rapporteur notes that the Declaration does have significant legal implications.  First, it informs the binding human rights obligations that States have under the UN Charter:
Although technically a resolution, the Declaration has legal significance, first, because it reflects an important level of consensus at the global level about the content of indigenous peoples’ rights, and that consensus informs the general obligation that States have under the Charter — an undoubtedly binding multilateral treaty of the highest order — to respect and promote human rights, including under Articles 1 (2), 1 (3), 55 and 56 of the Charter. The Declaration was adopted by an overwhelming majority of Member States and with the support of indigenous peoples worldwide and, as noted earlier, the few States that voted against the Declaration each subsequently reversed their positions. Especially when representing such a widespread consensus, General Assembly resolutions on matters of human rights, having been adopted under the authority of the Charter itself, can and do inform Member States’ obligations under the human rights clauses of the Charter. [see Ian Brownlie, Principles of Public International Law (Oxford, 7th ed., 2009), p. 15.]
Second, many of the basic rights affirmed in the Declaration constitute customary international law because they are well-established principles that most States recognize and expect must be complied with:
…some aspects of the Declaration — including core principles of non-discrimination, cultural integrity, property, self-determination and related precepts that are articulated in the Declaration — constitute, or are becoming, part of customary international law or are general principles of international law, as found by the International Law Association after a committee of experts conducted an extensive survey of international and State practice in relation to the Declaration.2 A norm of customary international law arises when a preponderance of States (and other actors with international personality) converge on a common understanding of the norm’s content and generally expect compliance with, and share a sense of obligation to, the norm. It cannot be much disputed that at least some of the core provisions of the Declaration, with their grounding in well-established human rights principles, possess these characteristics and thus reflect customary international law.
Third, the Special Rapporteur identifies that the rights contained within the Declaration reflect rights that are recognized in a number of legally binding human rights treaties and the Declaration consequently informs the interpretation and application of those treaties:
…the Declaration is an extension of standards found in various human rights treaties that have been widely ratified and that are legally binding on States. Human rights treaties with provisions relating to the rights of indigenous peoples include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination. The human rights treaty bodies that interpret and apply these treaties now frequently apply their provisions in ways that reflect the standards in the Declaration and sometimes explicitly refer to the Declaration in doing so. This happens, in particular, with regard to treaty provisions affirming principles of non-discrimination, cultural integrity and self-determination: principles that are also incorporated into the Declaration and upon which the Declaration elaborates with specific reference to indigenous peoples. Although the Declaration is not necessarily dispositive when interpreting a treaty the provisions of which intersect with those of the Declaration, it provides important guidance of significant weight.
In any case, the Special Rapporteur also points out that the status of the Declaration and the weight given to it ought not to be measured by its technical legal significance:
Whatever its legal significance, moreover, the Declaration has a significant normative weight grounded in its high degree of legitimacy. This legitimacy is a function not only of the fact that it has been formally endorsed by an overwhelming majority of United Nations Member States, but also the fact that it is the product of years of advocacy and struggle by indigenous peoples themselves. The norms of the Declaration substantially reflect indigenous peoples’ own aspirations, which after years of deliberation have come to be accepted by the international community. The Declaration’s wording, which has been endorsed by Member States, explicitly manifests a commitment to the rights and principles embodied in the Declaration. It is simply a matter of good faith that States adhere to that expression of commitment to the norms that indigenous peoples themselves have advanced.
The Special Rapporteur suggests that arguments that characterize the Declaration as strictly non-binding and without legal obligation are fundamentally flawed and simply stand in the way of effective implementation of recognized human rights standards:
…the significance of the Declaration is not to be diminished by assertions of its technical status as a resolution that in itself has a non-legally binding character. The Special Rapporteur reiterates that implementation of the Declaration should be regarded as political, moral and, yes, legal imperative without qualification.

Monday, September 16, 2013

Māori Community Development Act proposals and the New Zealand Māori Council

The government is currently consulting on proposed changes to the Māori Community Development Act1962.  The Act is significant because it provides the legislative framework for: 
  • the New Zealand Māori Council supported by three levels of Māori Associations (Māori Committees, Māori Executive Committees, and District Māori Councils);
  • Māori Wardens; and
  • Community Officers. 

The Māori Affairs Select Committee completed an inquiry into the Act in 2010 and made a number of recommendations for reform.  The Select Committee also recommended that any legislative change be preceded by comprehensive consultation with Māori.  The discussion paper therefore seeks views on:
options for the future of the New Zealand Māori Council;
  • options to improve arrangements for Māori Wardens; and
  • the provisions of the Act relating to Community Officers.

The discussion paper presents two broad options for the future of the New Zealand Māori Council
  1. A new refocused national Māori organisation – concentrates on social and economic issues that impact on community development for all Māori; membership, direction and priorities mandated by the community, with robust and transparent measures designed to ensure accountability to Māori; legislation will need to be amended to remove outdated statutory responsibilities; or
  2. No change – New Zealand Māori Council continues along with the existing statutory responsibilities as outlined in the 1962 Act to:

  • consider and discuss matters relevant to the social and economic advancement of Māori;
  • promote, encourage and assist Māori to conserve, improve, advance and maintain their physical, economic, industrial, educational, social, moral, and spiritual well-being; and
  • collaborate with government departments on employment, education, training, housing and health. 

The paper also present two broad options for the structure of the New Zealand Māori Council.
  1. A streamlined national organisation – membership drawn from across Māoridom; clear mechanisms to ensure members are accountable for delivering to Māori communities; or
  2. No change – current structure maintained: New Zealand Māori Council (national level), District Māori Councils, Māori Executive Committees and Māori Committees (regional and local).

The paper also seeks feedback on the roles and responsibilities of Māori Wardens and proposals to re-establish Community Officers.
However, it is the proposals relating to the Māori Council that appear to be provoking the most discussion.
A press-release from Council Co-Chair Sir Edward Taihakurei Durie identifies the significance of the statutory recognition of the Council and its purposes:
For a minority group, seeking to maintain its culture, statutory recognition of its function is required. Without it, the Council would not have had the standing to do what it did, in the Courts and institutions of the majority culture. It is important above all, to support statutory recognition.

Sir Edward makes an explicit link between these issues of representation and Treaty principles:
There are major issues for discussion.
The immediate question is who should decide the issues and how.
The conferral of official recognition is for Maori to seek and for government to decide, but in deciding, good faith will require significant respect for the Treaty.
As for the shape of the organisation itself, and the process for deciding, that is for Māori to decide. That too is a Treaty principle.
The present government led process, as directed by the cabinet, is inherently wrong. A Māori led process would require prior meetings with several interest groups, and the production of a plan for the people.

For those reasons the Council says:

  • the Council should stay until a better structure is found.

  • the structure should come from Māori, by Māori process.

  • the process will take time

  • good faith discussions with government, iwi leaders and urban groups should continue meanwhile.

The Council has also posted information on their website reporting on the first 12 consultation hui addressing the government’s proposals.  Their key messages are:
  • Council is heartened by the groundswell of support for the Council, for the role it plays in protecting the rights and interests of all Maori and for the Maori Community Development Act which gives Council its statutory powers.
  • Over halfway through the nationwide Crown-led consultation, the vast majority of submitters have argued to keep the Act as it is and to keep the Wardens with the Council.
  • In the first five hui held in Northland and Auckland submitters were unanimous in their support. This is significant because over half of all Wardens come from these regions. One speaker, at the sixth hui in Palmerston North called for a stand alone body for the Wardens. At the same hui, four speakers called for the Wardens to remain with Council.
  • In the Palmerston North, Wanganui, New Plymouth and Hamilton hui, fewer than 14 percent of submissions were in favour of removing Wardens from Council.
  • Given that Council and the Wardens have been shut out of the planning for these hui and have been refused a place at the table, this is an astounding vote of confidence for the New Zealand Maori Council.
  • The theme that has dominated has been that any reforms or changes must be carried by the Council and Wardens themselves.
  • The Crown and TPK have been criticised for withholding the Wardens funding from the Wardens. Many speakers noted that the funds are controlled by TPK and that most Wardens have not seen a penny.
  • A further criticism has been that government has never funded the Council to fulfil its role under the Act. Many noted that the Council’s funding of around $180,000 has been kept the same for the past 20 years.

Consultation hui are continuing through until the end of September and the deadline for feedback has been extended until 31 October.  The consultation document can be found here and feedback can be sent to
Māori Community Development Act 1962 Consultation, Freepost 157031, C/- Te Puni Kōkiri, Box 3943, Wellington 6140.
Or emailed to:

Sunday, July 14, 2013

Template submission to Constitutional Advisory Panel

The deadline for submissions to the Constitutional Advisory Panel is 31 July 2013

Maria Bargh and I have put together a one page template submission that notes fundamental concerns about the process and also recommends that existing constitutional protections for Māori be maintained. The template submission can be found here 

If you support the points made in this template, you can fill out your details at the top and send it to the Panel.

You can either attach it to an email and send it to with “CAP submission” in the subject line.

Or, you can print it out and post it to:

Secretariat, Constitutional Advisory Panel
C/o Ministry of Justice
DX SX10088

Thursday, July 11, 2013

Meeting of Indigenous Peoples in Alta, Norway

Last month I participated in a meeting of Indigenous Peoples in Alta, Norway.  This meeting was part of the preparatory process for the UN World Conference on Indigenous Peoples to be held in September 2014. As part of the process of disseminiating information about the World Conference and reporting back on developments at the Alta preparatory meeting, myself and two other delegate from Aotearoa have put together a de-brief paper which sets out some of the background to the Alta meeting and identifies key issues for consideration from this point on.  This hopefully provides a little context for the official final outcome document from the Alta meeting.

Monday, June 10, 2013

Constitutions and the UNDRIP

The 12th 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.