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UNCHR Mission To NZ Report Addendum

UN COMMISSION ON HUMAN RIGHTS
Sixty-second session
Item 15 of the provisional agenda
INDIGENOUS ISSUES
Human rights and indigenous issues
Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen*
Addendum

MISSION TO NEW ZEALAND **

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* The reason for the late submission of the present report is the need to reflect the latest information.

** The summary is being circulated in all languages. The report itself, which is annexed to the summary, is being circulated in the language of submission only.

Summary

The present report is submitted in accordance with Commission on Human Rights resolution 2005/51 and refers to the official visit paid to New Zealand by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people from 16 to 26 November 2005, pursuant to the standing invitation of the Government of New Zealand to United Nations special procedures. He acknowledges the opportunity to engage with high Government officials, Maori leaders, indigenous and civil society organizations as well as with representatives of research centres and educational institutions, and expresses his gratitude to the people and Government of New Zealand for their hospitality and cooperation.

The relations between Maori, the indigenous people of New Zealand, and the Government are based on the Treaty of Waitangi signed in 1840. As a result of land sales and breaches of the Treaty by the Crown, Maori lost most of their land, resources, self-governance and cultural identity. A new approach since 1975 has led to numerous settlements of Maori land claims and the enactment of new legislation.

Maori, who possess a rich and vibrant cultural tradition, represent around 15 percent of a total population of about four million. While most of the Maori now live in urban centres, they maintain a close spiritual link with the land and the sea, especially in the areas where their iwi (tribes) are based.

The Special Rapporteur is encouraged by the Government’s commitment to reduce the existing inequalities between Maori and non-Maori and to ensure that the country’s development is shared by all groups in New Zealand society.

Despite the progress made, Maori are impatient with the pace of redress for breaches of the Treaty of Waitangi. Of particular concern to them is the Foreshore and Seabed Act, which extinguishes customary Maori property rights to the coastal areas and provides a statutory process for the recognition of customary or aboriginal title. The Government is applying various strategies to reduce the persistent inequalities between Maori and non-Maori regarding several social indicators such as health, education, housing, employment and income.

The Special Rapporteur concludes his report with a number of recommendations intended to help the parties concerned to bridge the existing gaps and consolidate the achievements obtained so far to reduce inequalities and protect Maori rights.

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**********

Annex

REPORT OF THE SPECIAL RAPPORTEUR ON THE SITUATION
OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS OF
INDIGENOUS PEOPLE, RODOLFO STAVENHAGEN,
ON HIS MISSION TO NEW ZEALAND
(16 to 26 November 2005)
CONTENTS

Paragraphs Page
Introduction …………………………………………………………….. 1-2 4
I. SCHEDULE OF THE VISIT …………………………………... 3-5 4
II. HISTORICAL BACKGROUND AND CONTEXT……………. 6-10 4
III. THE HUMAN RIGHTS SITUATION OF INDIGENOUS
PEOPLE (MAORI) IN NEW ZEALAND: PRIORITY
ISSUES…...................................................................................... 11-75 6
A. Political representation……………………………….. .... 17-21 7
B. Land rights, claims and settlements…………………....... 22-42 8
C. Human rights implications of the Foreshore and
Seabed Act......................................................................... 43-55 12
D. Administration of Justice………………………………… 56-58 15
E. Language, culture and education………………………... 59-67 15
F. The challenge: reducing inequalities…………………... .. 68-75 17
IV. CONCLUSIONS…....................................................................... 76-82 19
V. RECOMMENDATIONS ............................................................. 83-105 20
A. Recommendations to the Government .............................. 84-103 20
B. Recommendations to the civil society............................... 104-105 22

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**********

IV. CONCLUSIONS

76. On the basis of his conversations and observations the Special Rapporteur has reached the conclusions outlined below.

77. During the last three decades or so, ethnic relations in New Zealand changed from an assimilationist model (that undermined Maori cultural identity and governance structures) to a new bicultural approach based on the Treaty of Waitangi principles and the partnership between Maori and the Crown. The increasing assertiveness of Maori in demanding their long-denied rights and their claims for redress of past injustices led to inquiries and recommendations by the Waitangi Tribunal, negotiations leading to Treaty Settlements and the enactment of laws by Parliament when such settlements were finalized to the mutual satisfaction of the Government and Maori, with the sympathy and support of the majority of New Zealand society. Yet the legacy of the first 150 years of New Zealand was difficult to overcome, and many inequities continued to plague the relationships between Maori and Pakeha.

78. The inherent rights of Maori were not constitutionally recognized, nor were their own traditional governance bodies, which allowed Parliament to enact legislation by simple majority that modified this relationship according to the circumstances, a condition that the minority representation of Maori in the political process was unable to reform. Maori have the perception that all along they have been junior partners in this relationship.

79. Nothing illustrates this situation better than the complex land rights issue. Having been dispossessed of most of their lands and resources by the Crown for the benefit of Pakeha, Maori had to accept sporadic and insufficient redress, only to be faced with accusations that they were receiving undue privileges, which left in their wake resentments on both sides about perceived social and racial tensions. The latent crisis broke over the controversy concerning the Foreshore and Seabed Act 2004, whereby the Crown extinguished all Maori extant rights to the foreshore and seabed in the name of the public interest and at the same time opened the possibility for the recognition by the Government of customary use and practices through complicated and restrictive judicial and administrative procedures.

80. Despite social programmes, disparities continue to exist between Maori and non- Maori with regard to employment, income, health, housing, education, as well as in the criminal justice system. Although Maori collectives (iwi, hapu, whanau) are increasingly involved in the strategies designed to reduce these inequalities, as well as in those designed to promote economic development and Maori success in business, actual self-governance mechanisms based on the recognition of the right of indigenous peoples to selfdetermination have not yet been devised. There appears to be a need for the continuation of specific measures based on ethnicity in order to strengthen the social, economic and cultural rights of Maori as is consistent with the International Convention on the Elimination of All Forms of Racial Discrimination.

81. A return to the assimilationist model appears increasingly in public discourse, redirecting concern about collective rights and the place of Maori as a people within the wider society, to emphasis on the protection of the individual rights of all New Zealanders, including the rights to equal opportunity, due process of law and freedom from illegal discrimination on any grounds, including ethnicity or race.

82. These wider constitutional and societal issues need to be debated responsibly and democratically by all social and political actors concerned because their solution will determine the kind of society New Zealand will be in the future.

VI. RECOMMENDATIONS

83. On the basis of the foregoing considerations, the Special Rapporteur makes the recommendations that follow to both Government and civil society.

A. Recommendations to the Government

Constitutional issues

84. Building upon continuing debates concerning constitutional issues, a convention should be convened to design a constitutional reform in order to clearly regulate the relationship between the Government and the Maori people on the basis of the Treaty of Waitangi and the internationally recognized right of all peoples to self-determination.

85. The Treaty of Waitangi should be entrenched constitutionally in a form that respects the pluralism of New Zealand society, creating positive recognition and meaningful provision for Maori as a distinct people, possessing an alternative system of knowledge, philosophy and law.

86. The MMP electoral system should be constitutionally entrenched to guarantee adequate representation of Maori in the legislature and at the regional and local governance levels.

87. Iwi and hapu should be considered as likely units for strengthening the customary self-governance of Maori, in conjunction with local and regional councils and the functional bodies created to manage treaty settlements and other arrangements involving relations between Maori and the Crown.

88. The Legal Services Act should be amended to ensure that legal aid is available to Maori iwi and hapu as bodies of persons so as to afford them access to the protection mechanisms of human rights, and in order to eliminate discrimination against Maori collectives.

Human rights and the Waitangi Tribunal.

89. The Waitangi Tribunal should be granted legally binding and enforceable powers to adjudicate Treaty matters with the force of law.

90. The Waitangi Tribunal should be allocated more resources to enable it to carry out its work more efficiently and complete its inquiries within a foreseeable time frame.

91. The New Zealand Bill of Rights should be entrenched to better protect the human rights of all citizens regardless of ethnicity or race.

92. The Foreshore and Seabed Act should be repealed or amended by Parliament and the Crown should engage in treaty settlement negotiation with Maori that would recognize the inherent rights of Maori in the foreshore and seabed and establish regulatory mechanisms allowing for the free and full access by the general public to the country’s beaches and coastal area without discrimination of any kind.

Treaty settlements

93. In all Treaty settlements, the right of Maori to participate in the management of their cultural sites according to customary precepts should be specifically acknowledged, thereby enabling greater expression of Maori cultural and spiritual relationships.

94. Existing settlement acts should be amended, and other such acts in the future should be framed, so as to enable iwi and hapu to self-determine an appropriate corporate structure for receipt and management of assets.

95. The Crown should engage in negotiations with Maori to reach agreement on a more fair and equitable settlement policy and process.

Environment

96. The Crown should take an active interest in supervising the compliance of the paper company in cleaning up the waste site at Kawerau and the waste disposal build-up at Maketu.

Education and culture

97. More resources should be put at the disposal of Maori education at all levels, including teacher training programmes and the development of culturally appropriate teaching materials.

98. Student fees should be lowered and allowances increased so as to stimulate the passage of more Maori students from certificate and diploma to degree level programmes in tertiary education.

99. Maori sacred sites and other places of particular cultural significance to Maori should be incorporated permanently into the national cultural heritage of New Zealand.

100. The Maori cultural revival involving language, customs, knowledge systems, philosophy, values and arts should continue to be recognized and respected as part of the bicultural heritage of all New Zealanders through the appropriate cultural and educational channels.

Social policy

101. Social delivery services, particularly health and housing, should continue to be specifically targeted and tailored to the needs of Maori, requiring more targeted research, evaluation and statistical data bases.

International indigenous rights

102. The Government of New Zealand should continue to support efforts to achieve a United Nations declaration on the rights of indigenous peoples by consensus, including the right to self-determination.

103. The Government of New Zealand should ratify ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries.

B. Recommendations to the civil society

104. Public media should be encouraged to provide a balanced, unbiased and non-racist picture of Maori in New Zealand society, and an independent commission should be established to monitor their performance and suggest remedial action.

105. Representatives and leaders of political parties and public organizations should refrain from using language that may incite racial or ethnic intolerance.

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ends

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