Human rights approach can help in resolving Ihumātao dispute
Friday 23 August 2019
Applying New Zealand’s international human rights commitments, particularly those in the United Nations Declaration on the Rights of Indigenous Peoples, can help in resolving the situation at Ihumātao, Chief Human Rights Commissioner Paul Hunt says.
A Human Rights Commission report issued today aims to provide a constructive human rights framework within which the complex issues raised at Ihumātao can be considered.
“We acknowledge the vital discussions between mana whenua groups currently being held under the korowai and protection of the Māori King, Kiingi Tuuheitia,” Mr Hunt says.
“Our hope is that our report may assist these negotiations, and broader discussions around the country about Ihumātao, by examining the relevance of New Zealand’s human rights commitments under the Declaration and Te Tiriti o Waitangi to the dispute.
“There are a number of human rights commitments implicit in Te Tiriti which are enlarged on in the Declaration,” Mr Hunt says.
“The Declaration also aligns with the Māori worldview including the inter-relationship between people and the natural world, and kaitiakitanga (guardianship) of these natural resources.”
The Government has endorsed the Declaration and by doing so has made a commitment to uphold the rights contained in it, Mr Hunt says.
These human rights commitments highlight the Government’s obligations to both protect Māori rights to land and culture, and to provide a fully participatory decision-making framework, Mr Hunt says.
Central to the right to participation is the right of indigenous peoples to free, prior and informed consent – one of the most important procedural principles in the Declaration.
“Free, prior and informed consent is an issue at the centre of the dispute over the decisions regarding the zoning of land at Ihumātao as a Special Housing Area, and the decisions regarding the development of the land,” Mr Hunt says.
Human rights principles support the approach being taken by mana whenua that disagreements within indigenous communities about whether free, prior and informed consent has been achieved are best resolved by the indigenous peoples, he says.
The Government, for its part, needs to ensure that consultation processes support consensus building within the indigenous peoples’ community, are non-coercive and do not cause division.
“The report also highlights the UN Guiding Principles on Business and Human Rights, which have implications for both the Government and Fletcher Building in relation to Ihumātao,” he says.
The Commission also believes that a human rights led approach to Ihumātao includes:
• Protection of mana whenua rights and a
continued halt on development of the land while work towards
a resolution is carried out
• Provision for redress in a manner consistent with human rights standards
• A Government commitment to full engagement with the United Nations Special Rapporteurs on the Right to Adequate Housing and the Rights of Indigenous Peoples
“Ihumātao can be a turning point for the protection of indigenous rights in Aotearoa New Zealand and that it provides a real opportunity to move the nation forward in a constructive way, “ Mr Hunt says.
Copies of the report can be found
Word version: https://www.hrc.co.nz/files/8515/6651/4431/International_human_rights_perspectives_on_Ihumatao.docx
The Commission has a statutory function under the Human Rights Act to ‘’promote by research, education, and discussion a better understanding of the human rights dimensions of the Treaty of Waitangi and their relationship with domestic and international human rights law”.
New Zealand’s international human rights commitments under the United Nations Declaration on the Rights of Indigenous Peoples Declaration and Te Tiriti o Waitangi include:
• The right to land requires
the Government to protect Māori rights to their lands,
territories and resources which they have traditionally
owned, occupied or used.
• The right to culture affirms the right of Māori to maintain, protect and develop the dignity of their culture.
• The right to protection requires the Government to recognise and protect the right of Māori to maintain, control, protect and develop their rights under the Declaration.
• The right to participation requires the Government to consult with Māori in good faith with the objective of obtaining their consent on measures that may affect them.
• The right to free, prior and informed consent is a central component of the right to participation. It involves the right of Māori to be fully informed, be appropriately consulted with, and to fully participate in, any decision-making relevant to their ancestral right to land, territories and resources.
• The principle of good faith requires consultations be carried out in the spirit of mutual trust and transparency.
• The right to redress and restitution requires that where lands have been confiscated without the free, prior and informed consent of Māori there should be redress in the form of restitution (return) in the first instance or when this is not possible, just, fair and equitable compensation.
• Decision-making processes must be fair, independent, impartial, open and transparent in particular, the Government has an obligation to guarantee mana whenua with access to justice including in respect of any claims they have regarding their dispossessed lands.