Last week, a United Nations committee noted concerns about the lack of constitutional protection in New Zealand for some types of human rights, including rights of Māori. Treaty and constitutional law lecturer Carwyn Jones recommends the government revisit the relevant documents.
Concerns were expressed last week by the United Nations Committee on Economic, Social and Cultural Rights – a panel of experts established to monitor the implementation of rights recognised in the ICESCR – that New Zealand still isn’t pulling its weight.
The ICESCR covers a range of fundamental human rights such as labour rights, rights to education, adequate living conditions, housing, and health. As a party to the ICESCR, New Zealand formally reports to the committee every five years. Alongside the government report, this process also provides the opportunity for the Human Rights Commission and NGOs to submit reports to the committee. Following consideration of the submitted reports, including oral presentations and questions from committee members, the committee releases its ‘concluding observations’.
The committee’s concluding observations on New Zealand’s recent report included positive comments about work undertaken by government to protect migrant workers from exploitation, secure health rights for Pasifika, and advance gender equality in public life. The committee also welcomed the government’s commitment to prioritising matters such as reducing child poverty, increasing the minimum wage, overhauling both mental health and education systems, and more effectively addressing the housing crisis in New Zealand.
However, the committee also identified a number of areas of concern. These included issues relating to equality between men and women (in employment and other contexts), matters relating to conditions of work, the minimum wage, unemployment and underemployment, concerns about the unaffordability of housing in New Zealand, mental health and addiction services that are insufficiently responsive, and the prevalence of domestic and gender-based violence. In many of these areas, the committee expressed particular concerns about the disparities that persist between Māori and Pasifika and other population groups.
An overarching concern expressed by the committee is that economic, social and cultural rights are not fully incorporated into New Zealand law and do not have effective enforcement mechanisms or remedies. The committee specifically pointed to the lack of enforceability of Māori rights under the Treaty of Waitangi and recommended that the New Zealand government ‘take immediate steps’ to work with Māori in developing the constitutional role of the Treaty of Waitangi, including addressing the proposals put forward in the 2016 Matike Mai Aotearoa report. The committee expressed concern that Waitangi Tribunal recommendations are not binding and are frequently ignored. The committee determined that the government should ensure that it acts on all recommendations from the tribunal, ‘including in its landmark report Ko Aotearoa Tēnei’.
The recommendations for constitutional protection and other mechanisms to ensure enforceability of rights are of particular concern to the committee because if rights are not enforceable, then they really just exist subject to political whim, and so they cannot really be said to be effectively protected at all. Which is why similar concerns about the lack of constitutional recognition of Māori rights have previously been expressed by other UN entities (see, for example, reports on the state of Indigenous rights in New Zealand written by successive special rapporteurs on the Rights of Indigenous Peoples here and here).
It is notable that the committee identified the recommendations made in the report of Matike Mai Aotearoa – the Independent Working Group on Constitutional Transformation – as an essential part of constitutional development and the effective protection of human rights here in Aotearoa. Matike Mai Aotearoa was formed under the auspices of the National Iwi Chairs Forum. Professor Margaret Mutu was appointed to chair the group and Moana Jackson was invited to be its convenor. Further members were nominated by iwi and other organisations or co-opted for particular expertise or experiences. The terms of reference given to the groups were:
“To develop and implement a model for an inclusive Constitution for Aotearoa based on tikanga and kawa, He Whakaputanga o te Rangatiratanga o Niu Tireni of 1835, Te Tiriti o Waitangi of 1840, and other indigenous human rights instruments which enjoy a wide degree of international recognition.”
The group held over 250 hui between 2012-2015 and gathered feedback on Māori constitutional aspirations. The working group produced a report in 2016, which identified six different constitutional models. These models are intended to indicate the range of possibilities that may be deployed to give effect to the values in tikanga and the Tiriti relationship. These models, described at a relatively high-level, aim to recognise the integrity and independence of both rangatiratanga and kāwanatanga and provide options for further discussion.
To date, the government has not really engaged with the Matike Mai report. It would be great to see the government participate in a constitutional discussion that begins from the basic premise of the Matike Mai report, that New Zealand’s constitutional arrangements ought to be underpinned by tikanga and Te Tiriti.
It is also significant that the committee made specific reference to the Waitangi Tribunal’s report, Ko Aotearoa Tēnei. Released in 2011, Ko Aotearoa Tēnei is the Waitangi Tribunal’s report on claims in the long running Wai262 inquiry that related to mātauranga Māori and New Zealand law and policy affecting Māori culture and identity. Although the Tribunal explicitly stated that the inquiry was not addressing constitutional issues, the broad ranging nature of the subject matter meant that the Tribunal was dealing with Māori participation in decision-making across the whole of government – from intellectual property to environmental management to rongoā Māori to international treaty-making. Across the range of policy areas that were considered, the key for the Tribunal was to ensure Māori are able to exercise genuine decision-making authority and that government agencies are required to deal with the Māori interests in a way that is consistent, transparent and accountable. These are important characteristics for the kind of protection and enforcement mechanisms with which the committee is concerned. If, for example, the Tribunal’s recommendations that aimed at ensuring that Māori have a more substantial and more direct role in New Zealand’s international treaty negotiations had been adopted, it is likely that the Trans Pacific Partnership agreement would have included more certain and effective protections for Māori rights.
The committee’s recommendations may well be timely. On Saturday, Kelvin Davis kicked off a series of consultation hui to inform the setting of the scope and priorities for the new Crown/Māori Relations portfolio. The observations made by the Committee on Economic, Social and Cultural Rights provides important guidance on developing that relationship in ways which better recognise and protect Māori rights. Let’s encourage the minister to take that guidance on board.
Carwyn Jones is lecturer at Victoria University specialising in Treaty and constitutional law.
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