Another Primer on the Foreshore and Seabed
The First International Report from the United Nations
14 March 2005
The United Nations Committee on the Elimination of Racial Discrimination has just issued a Report on the Foreshore and Seabed legislation passed last year.
This Primer attempts to give some background information on the Report, the Committee, its powers, and the initial Crown response.
What is the Committee?
The Committee was established under an international human rights treaty called the Convention on the Elimination of Racial Discrimination (CERD).
What does CERD say?
The Convention prohibits racial discrimination and defines it as a breach of international law.
In Article 1 racial discrimination means any 'distinction, exclusion, restriction, or preference based on race, colour, descent or national or ethnic origin'.
In Article 5 States agree to ensure equality before the law and to recognise (among other things) the right to equal treatment before the tribunals and all other organs administering justice.
Article 6 requires States to assure everyone 'effective remedies and protections'.
Article 14 gives the Committee jurisdiction to hear complaints.
When did New Zealand become a signatory?
New Zealand ratified the Convention in 1972 and agreed to accept the jurisdiction of the Committee the same year.
Who is on the Committee?
As with all United Nations Committees it is made up of 'independent experts' appointed by the UN members.
Most are jurists or experts in particular fields. There are 18 members and the current chairperson is Patricia Nozipho January-Bardill of South Africa.
What power does the Committee have?
It has no power to make decisions binding on governments. A government can ignore its findings.
However any finding against a government carries persuasive power and is a cause of international embarrassment.
Who went to the Committee to seek a finding on the foreshore?
The complaint was laid by the Treaty Tribes Coalition representing most of the North Island Iwi, the Taranaki Maori Trust Board, and Ngai Tahu.
What did they say?
Basically what Maori people said all along about the foreshore issue - that it took away or extinguished Maori rights and thus discriminated against Maori.
What did the Committee find?
The Committee issued a short Report (only nine paragraphs) which essentially upheld the Maori claim.
In particular it criticised the haste with which the government passed the legislation.
More importantly it found that
"the legislation appears ... on balance to contain discriminatory aspects against the Maori, in particular in its extinguishment of the possibility of establishing Maori title to the foreshore and seabed and in its failure to provide a guaranteed right of redress."
In effect the Committee found that the legislation and extinguishment is indeed racially discriminatory.
What has been the Crown response?
Dr. Cullen began by suggesting that perhaps the Committee did not really understand the complexity of the issue.
He then suggested that although the Committee found "discriminatory aspects" in the legislation it was not in itself in breach of the Convention. In his words the Committee was more "circumspect".
However on any reading a statute that has "discriminatory aspects" is by its nature an act of racial discrimination in terms of the Convention. A statute that only extinguishes rights on the basis of "race (and) ethnic origin" as the foreshore legislation does is also clearly in breach.
It also rejected the finding of failing to provide guaranteed redress by claiming it would negotiate redress in good faith.
However under international human rights law breaches require guaranteed redress. Redress is not meant to be subject to negotiation, especially as a negotiation may well lead to a decision saying no redress is necessary in a particular case.
The response has in fact contained the same lack of logic and concern for Maori rights that the government and most other political Parties have shown throughout this issue.
So the government will ignore the Committee's findings?
It is clear that the government will attempt to either ignore or reinterpret the Committee's findings.
At one level because it is prepared to act as a colonising State and be discriminatory against Maori as it has always been. The comparisons drawn by Maori between the legislation and the raupatu laws of the 19th century are even more apt now, especially with the added irony that the Crown has admitted the raupatu were in breach of the Treaty of Waitangi.
The other reason is the practical New Right economic ideology that also drove the legislation. The government is currently considering granting mining rights to a Chinese company over large areas of the foreshore. It could not have done this without the passage of the legislation.
What is the next step?
The power of international embarrassment should not be underestimated. The government is particularly sensitive on this matter at the moment because it wishes to become a member of the prestigious UN Human Rights Committee and this finding may militate against its appointment if pressure is maintained at an international level. Many other indigenous peoples are prepared to assist with this.
A number of Iwi and other groups are considering various legal challenges following the Committee's findings.
Whatever strategies are adopted the Committee's Report is simply further justification for the principled stand taken on this issue by Maori.
- Moana Jackson