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Response to UN Special Rapporteur report

Hon Dr Michael Cullen
Deputy Prime Minister

4 April 2006 Media Statement

Response to UN Special Rapporteur report

Deputy Prime Minister Michael Cullen has described the final report of the UN Special Rapporteur for indigenous issues as disappointing, unbalanced and narrow.

"It's hardly surprising that Mr Stavenhagen has come to selective conclusions when he only spent about eight working days consulting in the country all up.

"As a result he has failed to grasp the importance of the special mechanisms we have in place to deal with Maori grievances and the progress successive governments have made," said Dr Cullen.

He is wrong to claim settlements are "coerced".

"New Zealand is one of only a handful of countries with a significant indigenous population that has put in place sophisticated mechanisms, mandated by law, to address historical and contemporary grievances.

"We must have got it right as UN human rights treaty bodies regard our efforts as exemplary.

"It would have been useful if Mr Stavenhagen had given our mechanisms more attention in his report.

"His raft of recommendations is an attempt to tell us how to manage our political system. This may be fine in countries without a proud democratic tradition, but not in New Zealand where we prefer to debate and find solutions to these issues ourselves.

"His suggestion that there needs to be an independent commission to guide and monitor the media shows just how out of touch Mr Stavenhagen is with New Zealand," Dr Cullen concluded.

The government expects to table a formal response at the UN sometime in the next few months.


ENDS


Note:
The following are important areas of disagreement.

Foreshore and seabed-related
- The Special Rapporteur mis-states the effect of the Ngati Apa decision: the Special Rapporteur suggests that the Foreshore and Seabed Act replaces an "inherent right" with a "difficult judicial and administrative procedure" leading possibly to the issuing of a customary rights order. Ngati Apa only allowed groups to test in court whether they had subsisting common law rights or a claim for Maori customary land. The Court of Appeal itself noted this process was unlikely to be straightforward as the common law in this area is particularly difficult. The Act establishes a clear statutory process for groups to seek recognition of their customary rights via the courts which could result in a territorial customary rights finding, a confirmed Recognition Agreement, and/or a customary rights order (paras 16, 52 and 78).

- The Special Rapporteur incorrectly states the pre-Ngati Apa legal position: the Special Rapporteur suggests that until Ngati Apa, Maori customary ownership, occupation and use of the foreshore and seabed were never legally challenged in the courts. That is wrong. As the Special Rapporteur observes later in the paragraph there was existing legislation vesting the foreshore and seabed in the Crown; and the Court of Appeal’s 1963 decision in In Re Ninety Mile Beach to name one example (para 45).

- The Special Rapporteur does not recognise the changes made to the Bill as a result of the Waitangi Tribunal report, and public submissions: the Special Rapporteur fails to note that in re-shaping the Bill the government took into account the Waitangi Tribunal’s report, the Human Rights Commission’s report, and the numerous submissions on the Bill. This is reflected in the Bill by the inclusion of a High Court jurisdiction to consider whether territorial customary rights would have existed but for the Act, and the option to apply for a customary rights order which gives legal protection under the Resource Management Act (so that these activities do not require a resource consent, and so that generally no other activities can be carried out if they have a significant adverse effect on the recognised customary activity).

- The Special Rapporteur mis-states the effect of excluding freehold titles from the Crown vesting: the Special Rapporteur states that by excluding existing freehold interests in the foreshore and seabed from the vesting in Crown ownership, the Human Rights Commission considers that the Act limits the right to freedom from discrimination. While the Act did exclude legal titles in the foreshore and seabed from the Crown vesting this was based on the status of the land itself, not the race of the owner. Legal titles in the foreshore and seabed at the time of enactment of the Foreshore and Seabed Act included Maori Freehold Land and, quite likely, general land owned by Maori (para 51).


Other
- The Report recommends the entrenchment of the MMP electoral system (paragraph 54). As the Government has advised the Special Rapporteur, the electoral system is entrenched, requiring either a 75% majority in Parliament or a referendum to change it.

- The Report recommends that heritage protection ought to be accorded to Maori sacred sites and other sites of particular cultural significance (paragraph 97). As the Government had advised, there are extensive statutory schemes for the protection of such sites.

There are also several issues of balance. Most significant are:
- The report does not recognise that the number of Maori seats in Parliament changes depending on the results of the Maori Electoral Option.
- The report’s commentary on the Waitangi Tribunal/Treaty settlement process is generally negative, which is surprising given that other UN bodies have praised it. It is particularly concerning that the Special Rapporteur omits mention of the fact that settlements are voted on by all members of the relevant hapu or iwi, and can be rejected at that stage.

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