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 "Understanding the Relationship between individual human rights and communal rights"

 By Russell Fairbrother, MP

Barrister

1. Mason Durie concludes his book, published in 2003, Nga Tai Matatu - Tides of Maori Endurance with this verse:

Maori endurance has a tidal rhythm;

It builds on the lives and journeys of those who have grown old

In order to navigate undiscovered realms.

 2. My appreciation of the Bill of Rights tradition is instinctive, my understanding of "the lives and journeys of those who have grown old" is not. Thus, this paper is a pakeha view of whatever relationship exists between our Bill of Rights tradition and the rights promised in the Treaty of Waitangi.

 3. In four parts, this paper starts with a look at the philosophy behind the introduction of the New Zealand Bill of Rights Act 1990. It then comments on the relationship between the NZ BOR and the Treaty. Thirdly, there is a brief look at how other countries with a Bill of Rights fiat deal with any Indigenous rights. The fourth part of this paper is to conclude that the future tidal rhythms of Mason Durie's metaphor must not just navigate the realms of this country's Bill of Rights tradition, but, also, must change it.

 4. This paper is indebted to the research of Michelle Schulz and Alex MacBean of the Law and Government Team of the Parliamentary Library.

 

Philosophy behind the adoption of the New Zealand Bill of Rights.

5. In The New Zealand Bill of Rights published in 2004 and authored by P. Rishworth et al the traditional view of the New Zealand Bill of Rights Act 1990 is described on the first page:

The Bill of Rights is an affirmation of fundamental human rights for all persons in New Zealand, reflecting rights and freedoms long established in the Anglo-New Zealand tradition as well as most of those affirmed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.   It establishes a set of minimum standards to be met by the three branches of the New Zealand government in their dealings with individuals.  The Bill of Rights therefore stands in a long line of enactments that affirm individual rights, from Magna Carta and the English Bill of Rights 1688, through the constitution of the United States and the modern constitutions of the world that includes bills of rights.

 

6. I guess writers such as Moana Jackson would consider this less a statement of "fundamental human rights for all persons in New Zealand" and more an expression of the inevitability of colonisation. Jackson expressed it this way, in his chapter "Globalisation and the Colonising State of Mind" (Resistance: An Indigenous Response to Neoliberalism edited by Maria Bargh; Huia Press 2007 page 168):

As more and more European states rushed to colonise innocent peoples who had done them no harm, they also developed a common process that privileged shared European values, institutions, laws and politics.

 7. The debate following the 1985 tabling of the Government White Paper, A Bill of Rights for New Zealand reveals a lack of consideration of the role of community in the Maori world. The White Paper contains comment that found its way into the 1990 legislation:

• 3.1 The Bill would state the fundamental rights and freedoms of New Zealanders [...]
• 3.7 The Bill would guarantee the rights and freedoms against the State, especially Parliament and the Executive [...]
• 3.10 [...] [T]he courts would have the major role in enforcing the

guarantees set out in it against the agencies of the State. [...]

 What did not find its way into the law was article 4 of the draft Bill:

 

4.                  Treaty of Waitangi

• (1) The rights of the Maori people under the Treaty of Waitangi are hereby recognised and affirmed.
• (2) The Treaty of Waitangi shall be regarded as always speaking and shall be applied to circumstances as they arise so that effect may be given to its spirit and true intent.
• (3) The Treaty of Waitangi means the Treaty as set out in

                                  English and in the schedule to the Bill of Rights.

The White Paper explained this inclusion of the Treaty in the following way:

3.3       The Bill would emphasise our nation's origins by recognising and protecting the rights of the Maori under the Treaty of Waitangi

5.3       The Maori attach a profound significance to the Treaty of Waitangi. Much of the criticism that has been heard in recent years is not that the Treaty is bad but essentially that it has not been honoured. No law or document that refuses to give proper recognition of it could fairly claim to be a Bill of Rights for all New Zealanders.

 5.16  Article 4 of the Bill carries this into effect and formally recognises the rights of the Maori under the Treaty of Waitangi.  If the Bill of Rights is enacted Governments, courts and Parliament will no longer be able to claim that these rights are only moral rights and have no substance in law, or that they can be overridden expressly or impliedly, by ordinary process of legislation.

5.17   One consequence will be that under Article 23 all legislation must be interpreted as far as it can so as to make it consistent with the Treaty.  But if it is impossible to reconcile any particular legislation with the rights of Maori under the Treaty the legislation will under Article 1 be to that extent set aside as being of no effect.   This is subject only to the limits allowed in Article 3 - limits that can be demonstrably justified in a free and democratic society.

 10. The White Paper paid the price for both questions it begged. The first question has to be: Can individual and indigenous people's collective rights work in conjunction? The second is: Does New Zealand have the appropriate constitutional structures to allow, as an underpinning right, the indigenous collective voice? These questions are addressed later in this paper.

11. As summarised by Rishworth (supra, para 5), human rights are, conceptually, rights for individuals. They set the relationship between an individual and the organs of state, by empowering the individual. Individuals may coalesce their individual right but this will always be ad hoc. The fundamental principle is a direct relationship between the Crown and its subjects. This is carried through to the common law. Common law rights are individual in nature.

12. The Treaty addresses itself to existing constitutional tikanga structures. The Treaty's preamble seeks "....to protect the Chiefs and the sub-tribes....". The first and second articles emphasise the relationship between the Crown and "the Chiefs" and "the sub-tribes". In the preamble and the first two articles the relationship is between the office holders within iwi and the Crown, without making those office holders part of the machinery of the Crown.

13. Common law rights seem to be created specifically in Article 3; which is addressed to "...all the ordinary people of New Zealand..." and gives these ordinary people - presumably regardless of questions of race, culture and tikanga - their rights of English citizenship.

14. What we do know, from the wide acceptance of the Treaty by the chiefs of the time, its "endurance (through) tidal rhythms" by Maori and its constitutional importance of today, is that the relationship between the preamble and the three articles has not developed a culture of dissent to the Treaty's structure. Nor had it been an obvious issue by the Crown; neither at the time of signing, nor since by European commentators.

15. So in answer to the first question - (Can individual and indigenous people's collective rights work in conjunction?) - We can say the Maori perspective seems untroubled by developing a relationship between tikanga structures and the rights of citizenship. The relationship between the two seems to have little troubled the contentious thinking of non-Maori participants; whether in the courts, academia, government or the opinion marketplace.

16. In this paper, I choose not to try and describe that relationship, because to me this a question of tikanga and Maori constitutionalism, for which I am unqualified. In any event, it is surely more important to first recognise the issue. From a pakeha perspective the issue may best be approached from the second question.

17. On the second question - Does New Zealand have the appropriate constitutional structures to allow as an underpinning right the indigenous collective voice? - the answer is clearly "no". The debate - avoided in Parliament and at the Law Commission - of questions of Tino Rangatiratanga supports this adamant conclusion. Rangatiratanga clearly relates to the first two articles of the Treaty and it is sensible to assume resolution of this concept constitutionally will define the rights conferred in article 3.

 18. The failure, in the White Paper and then in the interim report of the Justice and Law Reform Committee to address these two questions had the predictable result. The issue was swept under the carpet, reinforcing Moana Jackson's observations ("As more and more European states rushed to colonise innocent peoples who had done them no harm, they also developed a common process that privileged shared European values, institutions, laws and politics."). The Justice and Law Reform Committee Report of 1988 reported:

• Further, the Committee notes that individual questions about compliance with the Treaty are increasingly being addressed effectively by individual statutes, the Waitangi tribunal, and the Courts. For these reasons the Committee recommends against including an equivalent to Article 4 of the White Paper draft.

19. That is a sidestep to make Daniel Carter proud.

20. That Parliament didn't seem to grasp the issues tells us much about the evolution of thinking in the last 2 decades. The Justice and Law Reform Committee's interim report quite misunderstood the nature of collective rights promised in the Treaty. It started from the premise that collective rights were culturally neutral. Which is the euro-centric position Jackson opined about. The Committee wrote:

• i. [I]ndividual and collective rights are complementary, For example, the rights in the bill may be exercised by anyone and where a particular group had standing that group would be able to enforce the right on behalf of the group. Further, in recognising and affirming "the rights of Maori people" under the Treaty, Article 4 recognises collective rights.

 ii. As a matter of principle we consider it is appropriate to incorporate the rights of Maori people under the Treaty in any New Zealand Bill of Rights. [...] In any event, in our view, it would be inappropriate to delete the provisions in the draft bill relating to the Treaty without consultation with the Maori People.

• Relationship between the NZBOR and the Treaty of Waitangi

21. The confusion shown by the Justice and Law Reform Committee can still be seen today.

22. Mai Chen, for whom I have huge regard, in a paper presented to the 5^th Maori Legal Forum, correctly noted the present reluctance of Parliament to formally elevate the Treaty to a constitutionally binding norm whilst noting judicial acceptance of the importance of the NZ BOR and recognition of remedies for breaches. But concluded, wrongly, in my view:

• One may therefore reflect on the opportunity "lost" by Maori in opposing the inclusion of the Treaty under the Bill of Rights as the situation is unlikely to arise in the foreseeable future. Indeed, without significant compromise of their objectives, Maori are unlikely to make any progress on the constitutional status of the Treaty.

23. Mai Chen was referring to the lack of Maori enthusiasm for retaining Article 4 of the draft Bill (supra, para 8). John Tamihere, writing in the New Zealand law Journal in May 1987 noted:

• The inclusion of the Treaty of Waitangi in the manner drafted in the White Paper has been addressed at various Hui throughout the country.  Discussion is obviously dictated by the way in which Maori perceive the legal system per se and closely correlates to their experiences with it.   The encompassment of the Treaty in this form is unacceptable to the Maori.

24. In the same paper, Tamihere wrote:

• The manner in which democracy has been and is implemented and interpreted in New Zealand has lead to the Maori manifesting a deep suspicion and mistrust of the institutions which arbitrate and regulate our society. [...] The writer views the Bill of Rights drafted in a form which recognises Maori rights, rights inherent in an indigenous people, granted in the Treaty, and non erodible as offering a new avenue for opportunity to participate in the political process. [...] What the Bill will do is open up avenues of participation in the political process, it will give the Maori an ability to question injustices and finally it will stimulate the necessity for knowledge about one another.

25. This latter point of Tamihere's picked up a theme written a year earlier by Dr J Elkind in the December 1986 volume of the New Zealand Law Journal:

• Inclusion of the Treaty of Waitangi in the Bill of Rights may be seen as coming to terms with our bicultural heritage. [...] A Court may not be the forum most suited to enforce the Treaty of Waitangi. Indeed the present author has suggested that it would be more appropriate to vest enforcement entirely with the Waitangi Tribunal. [...] But we must begin to incorporate Maori values into our law and the Bill of Rights is the best place to start.

26. The confusion arises from a failure to differentiate between collective rights as a cultural norm and individual rights empowering an individual against the State. Commentators such as Chen, Elkind and Tamihere join with the Justice and Law Reform Committee of 1987 and 1988 in failing to recognise that the acceptance of a decision of the collective, whether it be whanau, hapu or iwi, may in fact involve compromises of European concepts of democracy and thus human rights tenets. Again, Jackson's point.

 27. Magna Carta, as an early expression of our human rights laws, saw the removal of the Crown from direct law making. Feudal governance was replaced with the direct democracy of Parliament. A feature of Parliamentary democracy is the Monarch's exclusion from the decision making process. This separation continues to the present day, with considerable decision making devolving to democratic territorial authorities and other entities such as District health Boards and education's Boards of Trustees.

28. A fear by submitters to the 1985 select committee was that inclusion of the Treaty in the Bill of rights could result in Parliament subsequently amending the actual wording of the Treaty. This valid fear directs our attention to the fundamental difference between the place of the Treaty and Bill of Rights legislation.

29. Culturally, there is an even more alarming fear. Throwing the Treaty in with Human Rights laws could see the intrusion of Human Rights values into the governance of whänau, hapu and iwi. If the White Paper had gone through as proposed, it is conceivable that Courts would have had to rule on process issues with English common law the only term of reference for a culturally discrete situation. This would have been disastrous for the Courts and disastrous for indigenous collectives.

30. To avoid either of the fears in the preceding two paragraphs, the cultural legal constructs must exist in their own value setting rather than the euro-centric value setting of conventional human rights laws.

31. Maori indigenous decision making structures remain significant today in various pieces of legislation and Bills before Parliament; such as the Maori Fisheries Act 2004, to some extent the Coroners Act 2006, the Waka Umanga (Maori Incorporations) Bill and the Central North Island Forest Land Collective Settlement Bill.

32. So, if there is a legally enforceable value to be placed on collective tikanga rights, how is that to be done?

33. An answer can be found in a passage from Professor Philip Joseph. Maori collective rights must be constitutionally recognised but they rise above the protections of human rights as expressed in legislation. In the December 1986 New Zealand Law Journal he wrote:

• Firstly, its inclusion in the draft Bill shows a failure to distinguish between the objectives of a Bill of Rights on the one hand, and a written constitution on the other. [...] [W] hilst written constitutions preambling social and state policy are manifestly expressions of national identity, a Bill of Rights is an apparatus solely for the protection of individual freedoms. Observe the traditional rights and freedoms included in the draft Bill [...]. These are rights attaching to individual human personality. The Treaty, by contrast, represents a pact between two peoples: Europeans and Maori. It is concerned with collective rights, responsibilities and privileges. If New Zealand desires to give fundamental law status to the Treaty as an expression of national identity, then its place is in a written constitution. It is too much to expect a Bill of Rights to unify people.

34. And this is surely the hard question. Do we want a New Zealand constitution that addresses the difference between features of the Anglo-Saxon system of democracy and whatever parts of the collective system of tikanga Maori that are the integral part of a different expression of democracy? This question will be addressed in the final part of this paper.

International Treatment of the intersect between Indigenous (aboriginal) rights and human rights;

35. Human rights are legislatively dealt with in only two states of Australia, in the absence of a federal bill of rights. Australian Capital Territory protects minority rights but excludes indigenous rights. The Victorian Charter of Human Rights and Responsibilities came into force on 1st January 2007. It does not include the right to self determination, but protects an aboriginal's right:

• with other members of their community - (a) to enjoy their identity and culture; [...]

36. The Victorian charter begs the question of what happens when faced with a claim that culture and identity can only be fully expressed through self-governance.

37. Canada's Charter of Rights and Freedoms recognises, in section 25, the rights of Aboriginal people of Canada to protect their "culture, customs, traditions and languages." . This section is considered to guarantee a right of self-governance.

38. Thomas Isaac in Canadian Charter of Rights and Freedoms: The Challenge of the Individual and Collective Rights of Aboriginal People" (2001) 21 Windsor YB Access to Just 431 at 447 addresses the issue of limiting group rights when they challenge the personal safety of an individual. He rejects the notion that collective rights and individual rights are mutually exclusive:

• It is clear that the assertion that there is a fundamental dichotomy between individual and group rights is false. In fact, it is by virtue of or membership in a larger community and through the protection of its institutions, that we have rights at all. Community is implicit in rights. Conversely, the only justification for community is that its strength and vitality is essential to the well-being, indeed the rights, of each of its members.
• Isaac continues, at p448:
• Indeed, the necessity for aboriginal collective rights can be found, to some degree, in the need to protect the well-being of individual aboriginal persons.

Conclusion

39. Human and Indigenous rights are distinctively different and own an extensive body of literature and discussion. The difference is fundamental. Fundamental, also is the need for action. The fact that Treaty settlements are recognising Maori structures as well as transferring considerable capital assets may in its own way be an expression of Tino Rangatiratanga.

40. The greater legislative emphasis on traditional Maori structures may suggest a move away from the euro-centric view expressed in the passage from Rishworth (supra, para 5). This change in legislative approach may seem to meet the challenge laid down by Jackson, but is it enough and do these initiatives really address the fundamental differences expressed, on the one hand, in our New Zealand Bill of Rights and, on the other, in our Treaty jurisprudence?

41. Our social climate answers the question with a resounding "no". To catch an incoming tide, we need to keep clearly focussed on the plain truth that Maori indigenous rights are not about collectives of convenience, but are the very vehicles of self-expression of those living the Maori culture.

42. Sailing this tide requires the courage of navigating outside our European parameters and values. Maori must be allowed to shape the basic values of indigenous collectives so they can be given legal constitutional expression. Sailing on this tide must recognise that the basic values of indigenous collectives will be different in form and different in function from our common law values. Common law values are intrinsically a part of the Pakeha identity, but may be less a part of, or have a different priority in, the Maori identity. The identification of these Maori collective values may go so far as impacting on conceptions of human rights.

43. Returning to Isaac for articulation of the challenge (p311)"

• [...] this debate has included suggestions that collective minority rights, in addition to the familiar individual rights, be constitutionally entrenched. For example, it is not infrequently suggested that the Constitution should be amended to include various Aboriginal rights, such as self-government and language rights, which are generally considered to be paradigmatic examples of collective rights.

44. There is a strong argument that the movement to establish constitutional collective rights that define our NZ Bill of Rights will happen over time, propelled by the adoption of Te Reo Maori and of indigenous structures to receive Treaty settlements.

45. But at what price?

46. Delivering the 2007 Harkness Henry Lecture on 24 September last, Justice Baragwanath noted:

• Conferring on indigenous people the fundamental human right of dignity may be expected to contribute seriously to reversal of the unhappy social trends of which we see so much evidence in the criminal courts.

47. Justice Baragwanath noted "a colonist's rationalisation ( of the denial of indigenous values and achievements) [is a] rationalisation that cannot resist analysis." In this, he seems to be recognising the force of Jackson's observation.

48. Justice Baragwanath echoed the words of John Tamihere's articulation of Maori distrust of much legal machinery (paras 22 and 23 supra) when he said:

• But we lawyers must play our part in lifting the hopes, aspirations and confidence of all members of our community. Until Maori feel that our laws and institutions value them, the deep seated problems in our society cannot heal.

49. That Maori feature to a disproportionate degree in our failure statistics is the wake up call. A call to set sail and "navigate undiscovered realms". Jackson writing in Resistance, supra seems to suggest this may lead to a call to arms. If heard, Justice Baragwanath's invocation to the legal profession could achieve the same thing with less pain. Resolving the differences between human rights and Maori communal rights will have to be dealt with, in some way, at some time. Now's good.

Te tai ra, te tai ra,

E pari ana te tai ki hea

E pari ana te tai ki te kauheke, kaumätua,

He atua, he atua

 

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