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Change in foreshore may bring NZ shame

21 March 2004

Planned foreshore and seabed law could see New Zealand "named and shamed" for breaching international law, damaging plans to win a coveted place on a United Nations' watchdog group, a former human rights commissioner has warned.

Auckland-based lawyer Chris Lawrence, who has represented the United Nations High Commissioner for Human Rights in Afghanistan, said the planned law change was probably inconsistent with international legal obligations.

There was no mechanism for enforcing human rights treaties against states that were in breach.

"The system works, to the extent that it does, by `naming and shaming'. Some regimes, being shameless, shrug off international criticism. But for those who care about their international reputation, naming and shaming is to be avoided like the plague."

He said the Government may think everything is "kapai" on the international law front, but he believed the risk was unacceptably high.

Deputy Prime Minister Michael Cullen, who is Government's lead minister on the foreshore and seabed, declined to comment.

But Foreign Affairs Minister Phil Goff said he did not think the planned law risked a breach of obligations nor would it harm New Zealand's image on human rights.

New Zealand's track record had been praised by the non-government agency Human Rights Watch as being among the few to hold a firm and principled line on human rights.

"I think most countries would be deeply envious of our track record in guaranteeing public ownership and public access without discrimination to foreshore and seabed areas."

In January Mr Goff announced New Zealand would seek election in 2009 to a sought-after post on the United Nations Commission on Human Rights.

Mr Lawrence, who says he acts for several Maori interests, said he agreed New Zealand had good credentials, but diplomats would need all their skill "to expunge that blot from our copybook" if one of the treaty monitoring bodies found it had fallen short.

The Government's proposed legislation, recognising customary rights, made little allowance for Maori to use customarily-owned resources to develop in modern ways, he said.

"It is based on a hunter-gatherer model of indigenous rights. It is open to the criticism that it is not very post-colonial at all."

He said the proposed law breached the principle of non-discriminatory equality before the law. There was no effective remedy in New Zealand law against legislative discrimination.

The International Covenant on Civil and Political Rights and the Convention on the Elimination of Racial Discrimination, both of which New Zealand is a party to, had established "treaty monitoring bodies". It was very likely Maori would lodge a complaint and preparatory steps were already being taken.

But Mr Goff said the planned law was anything but discriminatory and that every New Zealander has an entitlement to enjoy the foreshore and seabed in perpetuity.

Vernon Small,
The Dominion Post
© Fairfax New Zealand Limited 2004

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