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.

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. 


  

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!

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.

State of the World’s Indigenous Peoples

Last week the UN released a report entitled State of the World’s Indigenous Peoples.  This report addresses a range of social and economic indicators which present an alarming picture of Indigenous Peoples’ health, education, poverty, and interaction with criminal justice systems.  Though many people will be all too familiar with these kinds of statistics, the report usefully brings together data relating to Indigenous Peoples throughout the world and points to issues faced by those communities, whether they be in developing or developed countries. The report is set out in chapters which address poverty and well-being, culture, environment, contemporary education, health, and human rights.  The final chapter outlines a number of emerging issues for Indigenous Peoples.  

One thing that stands out in the report’s analysis is the stark disparities between Indigenous populations and groups in developed countries such as Australia, New Zealand, Canada, and the United States. For example, in relation to Māori in New Zealand the report notes:

“New Zealand is another country ranking high in global comparisons of human development, but where there exist persistent disparities between Maori and non-Maori in areas such as paid work, economic standard of living, housing, health and justice.”

The issues relating to criminal justice are perhaps most overtly connected to the operation of state legal systems.  Again, these issues are not new.  In the New Zealand context, it has been over 20 years since the publication of Moana Jackson’s, still excellent, report to the Department of Justice entitled Māori and the Criminal Justice System: A New Perspective = He Whaipaanga Hou. Since that time there appears to have been little progress in this area.  There have been some attempts by governments to address the findings of Jackson’s report, though, as the Waitangi Tribunal’s report on offender assessment policies highlighted, the implementation of such measures has been problematic. To participants at a 2008 colloquium focusing on Māori justice, many of the issues identified in Jackon’s report were, 20 years on, still relevant and of great concern. (For those who are interested, Juan Tauri provides a helpful commentary on the aims, structure and organization of that colloquium in the New Zealand Sociology journal).

Though criminal justice matters are directly linked to the state legal system, as State of the World’s Indigenous Peoples notes, all of the issues addressed in that report have come about largely as a consequence of the processes of colonization, economic marginalization and the imposition of settler legal systems and clearly all require the urgent attention of governments, legislators, and policy-makers.